PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CAVALIER TELEPHONE, LLC, 

Plaintiff-Appellee,

v.  No. 01-2135 VIRGINIA ELECTRIC AND POWER

COMPANY, d/b/a Dominion Virginia

Power,

Defendant-Appellant. 

CAVALIER TELEPHONE, LLC, 

Plaintiff-Appellant,

v.  No. 01-2192 VIRGINIA ELECTRIC AND POWER

COMPANY, d/b/a Dominion Virginia

Power,

Defendant-Appellee. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CA-01-106-3)

Argued: May 7, 2002

Decided: August 30, 2002

Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.

Reversed and remanded by published opinion. Judge Williams wrote

the opinion, in which Judge Traxler and Judge Gregory joined. 
COUNSEL

ARGUED: Thomas George Hungar, GIBSON, DUNN & CRUTCHER, L.L.P., Washington, D.C., for Appellant. Stephen Thomas

Perkins, CAVALIER TELEPHONE, L.L.C., Richmond, Virginia, for

Appellee. ON BRIEF: Curtis E. Gannon, GIBSON, DUNN &

CRUTCHER, L.L.P., Washington, D.C.; Stephen A. Northup, Matthew B. Kirsner, TROUTMAN, SANDERS, MAYS & VALENTINE,

L.L.P., Richmond, Virginia; John D. Sharer, Law Department,

DOMINION RESOURCES SERVICES, INC., Richmond, Virginia,

for Appellant. Donald F. Lynch, III, CAVALIER TELEPHONE,

L.L.C., Richmond, Virginia, for Appellee. 

OPINION

WILLIAMS, Circuit Judge: 

Virginia Electric and Power Company (Virginia Power) appeals the

district court’s entry of a preliminary injunction enforcing an order of

the Cable Services Bureau (CSB) issued pursuant to delegated authority.1

 Virginia Power contends that: (1) the CSB order is not eligible

1The Federal Communications Commission, as provided under 47

U.S.C.A. § 155(c), delegated authority to the CSB to administer and

enforce rules and policies regarding "[a]ccess to poles, ducts, conduits

and right-of-way and the rates, terms and conditions for pole attachments." 47 C.F.R. §§ 0.101(a)(2), 0.321 (2001) (repealed 2002). Effective March 25, 2002, the Commission transferred responsibility for

resolving pole attachment complaints from the former CSB to the

Enforcement Bureau. See 47 C.F.R. § 0.111(a)(12) (2002). Specifically,

the Market Disputes Resolution Division (MDRD) of the Enforcement

Bureau now handles all pole attachment complaints. Press Release, Federal Communications Commission, FCC Enforcement Bureau

Announces Reorganization Structure (March 8, 2002)

(http://www.fcc.gov/eb/News_Releases /DOC-220250A1.html). In the

interest of clarity, we will refer to the Commission’s authority under the

Pole Attachment Act and accompanying regulations without regard to

whether such authority has been delegated unless such delegation is

directly relevant to this case. 

2 CAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO.
for judicial enforcement because Virginia Power has filed an application for review by the Federal Communications Commission (the

Commission) and because Cavalier Telephone, LLC (Cavalier) failed

to exhaust an available administrative remedy; (2) the district court

erred by granting relief beyond the scope of the CSB order; and (3)

the district court failed to satisfy Federal Rules of Civil Procedure

52(a) and 65(d). On cross-appeal, Cavalier asserts that the district

court erred by imposing a limitation on Cavalier’s use of alternative

methods to attach its equipment to Virginia Power’s utility poles that

is not found in the CSB order. We do not reach the merits of this

appeal because Cavalier failed to exhaust an available administrative

remedy. We therefore reverse and remand with instructions to dismiss

Cavalier’s complaint. 

I.

Cavalier is an independent, facilities-based competitive local

exchange carrier providing telecommunications services to residential

and business customers throughout the Richmond, Tidewater, and

Northern Virginia areas. Virginia Power is an investor-owned electric

utility delivering power to homes and businesses through a network

of approximately one million poles. The Pole Attachment Act, as

added to the Communications Act of 1934 (the Communications Act)

and as amended by the Telecommunication Act of 1996, 47 U.S.C.A.

§ 224 (West 2001), requires utilities such as Virginia Power to provide "any telecommunications carrier with nondiscriminatory access

to any pole, duct, conduit, or right-of-way owned or controlled by it."2

47 U.S.C.A. § 224(f). 

On November 30, 1999, Cavalier filed a complaint with the Commission alleging that Virginia Power denied Cavalier access to its

poles in violation of the Pole Attachment Act. Virginia Power filed

2Under the Pole Attachment Act, "[t]he term ‘utility’ means any person who is a local exchange carrier or an electric, gas, water, steam, or

other public utility, and who owns or controls poles, ducts, conduits, or

rights-of-way used, in whole or in part, for any wire communications."

47 U.S.C.A. § 224(a)(1). The term "utility," however, "does not include

any railroad, any person who is cooperatively organized, or any person

owned by the Federal Government or any State." Id.

CAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO. 3
an opposition to Cavalier’s complaint on January 6, 2000. The CSB,

pursuant to delegated authority, considered the parties’ submissions

and on June 7, 2000, the CSB released an order "grant[ing] [Cavalier’s] Complaint in part" and requesting further information. (J.A. at

45-46.) Specifically, the CSB required Virginia Power to, among

other things, expedite processing of permits that had been pending

more than 45 days, not discriminate against Cavalier in the use of

extension arms or boxing,3 and to coordinate make-ready work4 of

other attachers and perform make-ready work on its own facilities in

a timely manner. On September 18, 2000, the CSB released a followup order terminating Virginia Power’s annual pole attachment rate of

$37.00 per pole, substituting a rate of $5.12, ordering Virginia Power

to compensate Cavalier for previous overcharges, and ordering both

parties to negotiate in good faith a just and reasonable rate for 2001.

Cavalier Telephone, LLC v. Va. Elec. & Power Co., 15 FCC Rcd.

17,962, 17,964 (2000). On July 7, 2000, Virginia Power filed an

application for review of the CSB’s order with the Commission, as

provided under 47 U.S.C.A. § 155(c)(4). At oral argument, Virginia

Power stated that the Commission had not yet acted on this application for review. On February 20, 2001, Cavalier filed a complaint in

the United States District Court for the Eastern District of Virginia

alleging that Virginia Power violated the June 7, 2000 order by continuing to deny it pole access. Cavalier simultaneously filed a motion

in the district court for a temporary restraining order and a preliminary injunction. On February 23, 2001, the district court issued a temporary restraining order against Virginia Power and subsequently

granted Cavalier’s Motion for Preliminary Injunction.5 The district

3The term "boxing" refers to the practice of installing communications

lines at approximately the same height on both sides of a pole. 

4

"Make-ready work" refers to the preparations necessary to make a

pole ready for attaching equipment. Such preparations typically involve

rearranging existing attachments to make room for the new attachment.

5Specifically, the district court (1) enjoined Virginia Power from canceling Cavalier’s permits to attach telecommunications equipment to Virginia Power’s poles; (2) ordered Virginia Power to reinstate pole

attachment permits canceled since the CSB order was issued; (3)

enjoined Virginia Power from revoking permits previously issued to

Cavalier; (4) ordered Virginia Power to grant or deny access within 45

days of receiving Cavalier’s applications; (5) ordered Virginia Power to

4 CAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO.
court determined that the CSB order became effective and enforceable when issued and exercised jurisdiction pursuant to 47 U.S.C.A.

§ 401(b) (West 2001).6 The district court then stayed the matter, but

not the preliminary injunction, pending final resolution of Virginia

Power’s application for review of the CSB order by the Commission.

allow Cavalier to attach immediately where permit applications had been

pending more than 45 days; (6) ordered Virginia Power to permit Cavalier to resume work immediately on its pole attachments; (7) ordered Virginia Power to permit Cavalier to use qualified workers who are not

employed by Virginia Power to perform Cavalier’s make-ready work; (8)

ordered Virginia Power to allow use of extension arms where pole

replacement is the only other option; (9) ordered both Cavalier and Virginia Power to negotiate in good faith and fashion a reasonable accommodation for the payment of make-ready work costs for future permits;

and (10) ordered Virginia Power to adhere to all other terms of the CSB

order. 

6Virginia Power contends that because the CSB order is being

reviewed by the Commission, it is not enforceable under § 401(b) and

thus the district court lacked subject matter jurisdiction to hear this case.

See 47 U.S.C.A. § 155(c)(3) (West 2001) ("Any order . . . made pursuant

to [delegation of authority under § 155], unless reviewed [by the Commission] as provided in [§ 155(c)(4)], shall have the same force and

effect, and shall be made, evidenced, and enforced in the same manner,

as orders . . . of the Commission."); 47 U.S.C.A. § 401(b) ("If any person

fails or neglects to obey any order of the Commission other than for the

payment of money, while the same is in effect, . . . any party injured

thereby . . . may apply to the appropriate district court of the United

States for enforcement of such order."). It is firmly established, however,

"that the absence of a valid (as opposed to arguable) cause of action does

not implicate subject matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case." See Verizon Md. Inc. v. Pub.

Serv. Comm’n of Md., 535 U.S. ___, 122 S.Ct. 1753, 1758 (2002) (internal quotation marks and citations omitted); Steel Co. v. Citizens for a

Better Environment, 523 U.S. 83, 89 (1998) (explaining that "if the right

of the petitioners to recover under their complaint will be sustained if the

. . . laws of the United States are given one construction and will be

defeated if they are given another", the district court has subject matter

jurisdiction). Virginia Power’s assertion that the CSB order is not "an

order of the Commission," therefore, does not implicate subject matter

jurisdiction. 

CAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO. 5
Virginia Power filed a timely notice of appeal and Cavalier filed a

timely cross-appeal. This court has jurisdiction pursuant to 28

U.S.C.A. § 1292(a)(1) (West 1993 & Supp. 2002), which permits

appeals of interlocutory orders granting or continuing injunctions. 

II.

The Pole Attachment Act requires the Commission to "regulate the

rates, terms, and conditions for pole attachments to provide that such

rates, terms, and conditions are just and reasonable" unless such matters are regulated by a state, an exception not applicable in this case.

47 U.S.C.A. §§ 224(b)(1), (c)(1). To this end, the Commission is

required to "adopt procedures necessary and appropriate to hear and

resolve complaints concerning such rates, terms, and conditions." 47

U.S.C.A. § 224(b)(1). Moreover, "[f]or purposes of enforcing any

determinations resulting from [these complaint procedures], the Commission shall take such action as it deems appropriate and necessary,

including issuing cease and desist orders, as authorized by section

312(b) of this title." Id. In response, the Commission promulgated the

Pole Attachment Complaint Procedures. 47 C.F.R. §§ 1.1401-1.1418

(2001). These regulations "provide complaint and enforcement procedures to ensure that telecommunications carriers and cable systems

operators have nondiscriminatory access to utility poles, ducts, conduits, and rights-of-way on rates, terms, and conditions that are just

and reasonable." § 1.1401. Under the regulations, a telecommunications carrier or cable systems operator may file a complaint if it

believes that a utility is imposing a rate, term, or condition that is "unjust or unreasonable" or that the utility’s denial of access violates 47

U.S.C.A. § 224(f).7 § 1.1404. The utility is allowed to file a response

to the complaint and the complainant may then file a reply to the utility’s response. § 1.1407. After the Commission considers the complaint as set out under § 1.1409, it issues an appropriate order. If the

respondent fails to obey the Commission’s order "the Commission on

its own motion or by motion of the complainant may order the

respondent to show cause why it should not cease and desist from vio7A utility may deny access only "on a non-discriminatory basis where

there is insufficient capacity and for reasons of safety, reliability and

generally applicable engineering purposes." 47 U.S.C.A. § 224(f)(2)

(footnote omitted). 

6 CAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO.
lating the Commission’s order."8

 § 1.1412. "If any person willfully

fails to obey any order imposed under [these procedures], . . . the

Commission may, in addition to any other remedies . . . impose a forfeiture pursuant to section 503(b) of the Communications Act."

§ 1.1413. 

In addition to the enforcement provisions under the Pole Attachment Act, the Communications Act provides that "[i]f any person fails

or neglects to obey any order of the Commission other than for the

payment of money, while the same is in effect, the Commission or

any party injured thereby, or the United States, by its Attorney General, may apply to the appropriate district court of the United States

for enforcement of such order."9 47 U.S.C.A. § 401(b). Thus, section

401(b) creates a private right of action in federal district court for

enforcement of any order of the Commission that does not require the

payment of money for those injured by another’s failure to obey the

order. See, e.g., Alltel Tennessee, Inc. v. Tennessee Pub. Serv.

Comm’n, 913 F.2d 305, 309 (6th Cir. 1990) ("The telephone compa8We refer to this administrative remedy as the Pole Attachment

Enforcement Procedure. 

9

Judicial review of an order of the Commission, on the other hand, is

only available in the court of appeals pursuant to § 402(a). Compare 47

U.S.C.A. § 401 (providing for enforcement of orders of the Commission

by the district courts), with § 402 (providing for judicial review of orders

of the Commission by the court of appeals). See FCC v. ITT World Communications, Inc., 466 U.S. 463, 468 (1984) (explaining that a district

court could not enjoin an order of the Commission because exclusive

jurisdiction for judicial review of Commission orders lies in the court of

appeals). Virginia Power argues that it is unconstitutional for an Article

III court to enforce an order of the Commission under § 401(b) prior to

judicial review of the order under § 402(a). We need not address this

issue because we conclude that Cavalier must first seek enforcement

under the Pole Attachment Complaint Procedures before seeking judicial

enforcement in the district court, and if Cavalier is successful in an

administrative action, Virginia Power may seek judicial review of the

cease-and-desist order under 47 U.S.C.A. § 402(b)(7). See MediaOne

Group, Inc. v. County of Henrico, 257 F.3d 356, 361 (4th Cir. 2001)

("[C]ourts should avoid deciding constitutional questions unless they are

essential to the disposition of a case." (internal quotation marks and citation omitted)). 

CAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO. 7
nies . . . properly sought enforcement of the [Commission’s] separations order by injunction pursuant to § 401(b)."); Hawaiian Tel. Co.

v. Pub. Util. Comm’n of Hawaii, 827 F.2d 1264, 1277 (9th Cir. 1987)

(concluding that injunction sought by telephone companies to enforce

Commission’s order was authorized under § 401(b)). Cavalier, rather

than availing itself of the Pole Attachment Enforcement Procedure,

brought a § 401(b) enforcement action in district court alleging that

it was injured by Virginia Power’s failure to obey the June 7, 2000

CSB order. The district court held that Cavalier need not exhaust the

administrative remedy. On appeal, Virginia Power argues that the

Commission specifically provided the Pole Attachment Enforcement

Procedure to enforce such orders. The issue we face, therefore, is

whether Cavalier is required to request a cease-and-desist order from

the Commission prior to seeking enforcement in federal court under

§ 401(b). 

III.

Whether Cavalier must exhaust the Pole Attachment Enforcement

Procedure before filing an enforcement action in federal court is a

legal question and thus subject to de novo review. NationsBank Corp.

v. Herman, 174 F.3d 424, 428 (4th Cir. 1999). It is a "long-settled rule

of judicial administration that no one is entitled to judicial relief for

a supposed or threatened injury until the prescribed administrative

remedy has been exhausted." Myers v. Bethlehem Shipbldg. Corp.,

303 U.S. 41, 50-51 (1938). In other words, "[w]here relief is available

from an administrative agency, the plaintiff is ordinarily required to

pursue that avenue of redress before proceeding to the courts; and

until that recourse is exhausted, suit is premature and must be dismissed." Reiter v. Cooper, 507 U.S. 258, 269 (1993). When applying

the exhaustion doctrine, Congressional intent is of "‘paramount

importance.’" McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (quoting Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 501 (1982)).

"Where Congress has intended to require administrative exhaustion

. . . courts enforce that requirement unless a party provides grounds

for waiving it in a particular case." NationsBank, 174 F.3d at 428; see

also Patsy, 457 U.S. at 501 n.4 ("[E]xhaustion is required where Congress provides that certain administrative remedies shall be exclusive."). "Even where the statutory requirement of exhaustion is not

explicit, courts are guided by congressional intent in determining

8 CAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO.
whether application of the doctrine would be consistent with the statutory scheme." Patsy, 457 U.S. at 501 n.4. Thus, "courts generally

focus on the role Congress has assigned to the relevant federal

agency, and tailor the exhaustion rule to fit the particular administrative scheme created by Congress." Id. As a result, the exhaustion

requirement serves to "allow an agency the opportunity to use its discretion and expertise to resolve a dispute without premature judicial

intervention and to allow the courts to have benefit of an agency’s talents through a fully developed administrative record."10 Thetford

Props. IV Ltd. v. Dep’t of Hous. & Urban Dev., 907 F.2d 445, 448

(4th Cir. 1990); McKart v. United States, 395 U.S. 185, 194 (1969)

("And since agency decisions are frequently of a discretionary nature

or frequently require expertise, the agency should be given the first

chance to exercise that discretion or apply that expertise."). 

These institutional interests, however, must be balanced against the

"virtually unflagging obligation of the federal courts" to exercise their

jurisdiction. Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800, 817-18 (1976). Thus "[i]n determining whether

exhaustion is required, federal courts must balance the interest of the

individual in retaining prompt access to a federal judicial forum

against countervailing institutional interests favoring exhaustion."

McCarthy, 503 U.S. at 146. "Application of this balancing principle

is intensely practical . . . because attention is directed to both the

nature of the claim presented and the characteristics of the particular

administrative procedure provided." Id. (internal citations omitted); 2

10We note that the doctrine of exhaustion of administrative remedies

is analytically analogous to the doctrine of primary jurisdiction. See 2

Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 14.1, at 271 (3d ed. 1994); Alltel, 913 F.2d at 309 ("The principal

reasons for the doctrine of primary jurisdiction are to obtain the benefit

of the expertise and experience of the administrative agencies and the

desirable uniformity which occurs when a specialized agency decides

certain administrative questions."). The Supreme Court, however, has

clarified that primary jurisdiction is "applicable to claims properly cognizable in court that contain some issue within the special competence of

an administrative agency." Reiter, 507 U.S. at 268 (emphasis added).

Because the issue we face is whether Cavalier must seek relief available

from an administrative agency before "proceeding to the courts," the doctrine of exhaustion of administrative remedies is applicable. Id. at 269.

CAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO. 9
Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law

Treatise § 15.2, at 307 (3d ed. 1994) ("Exhaustion is usually required

unless considerations of individual justice, efficiency, or wise judicial

administration support the need for judicial [involvement] in the

absence of exhaustion."). The individual’s interests weigh heavily in

the following three circumstances: (1) when requiring exhaustion may

prejudice subsequent court action; (2) when an agency’s remedy may

be inadequate; and (3) when the "administrative agency body is

shown to be biased or to have otherwise predetermined the issues

before it." Volvo GM Heavy Truck Corp. v. Dep’t of Labor, 118 F.3d

205, 211 n.8 (4th Cir. 1997) (citing McCarthy, 503 U.S. at 147-48).

With these principles in mind, we turn to whether Cavalier must

exhaust the Pole Attachment Enforcement Procedure before seeking

judicial enforcement of the CSB order under § 401(b). Because there

is no explicit requirement that Cavalier avail itself of the Pole Attachment Enforcement Procedure before proceeding to court, we must

weigh the institutional interests with regard to requiring exhaustion

against Cavalier’s interest in judicial enforcement, while being mindful of the scheme Congress established in the Pole Attachment Act.

The institutional interests weigh heavily in favor of exhaustion.

The role of the Commission is to "execute and enforce" the Communications Act. 47 U.S.C.A. § 151. Under the Pole Attachment Act, the

Commission is authorized to "regulate the rates, terms, and conditions

for pole attachments" and "adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and

conditions." 47 U.S.C.A. § 224(b)(1). Moreover, Congress gave the

Commission discretion to enforce determinations under the Pole

Attachment Complaint Procedures "as it deems appropriate and necessary." 47 U.S.C.A. § 244(b)(1); S. Rep. 95-580, at 21 (1977),

reprinted in 1978 U.S.C.C.A.N. 109, 129 ("The bill as reported

affords the Commission discretion to select the regulatory tools necessary to carry out its new responsibilities, consistent with the simple

complaint procedure specified in the bill, as reported."). Legislative

history further reveals that Congress intended to limit the enforcement

mechanisms available under the Pole Attachment Complaint Procedures to create a "simple and expeditious" process. S. Rep. 95-580,

at 21. Permitting a complainant to bypass the Pole Attachment

Enforcement Procedure would be inconsistent with the goal of a sim10 CAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO.
ple and expeditious process. Such judicial interference would make

the process of resolving pole attachment disputes more burdensome,

cause delay, and could weaken the effectiveness of the Pole Attachment Complaint Procedures. McKart, 395 U.S. at 195 ("[I]t is possible that frequent and deliberate flouting of administrative processes

could weaken the effectiveness of an agency by encouraging people

to ignore its procedures."). 

Furthermore, requiring exhaustion of the Pole Attachment Enforcement Procedure would give the Commission an opportunity to apply

its expertise and experience to address whether the CSB order has

been violated. For example, the CSB order prohibits Virginia Power

from applying discriminatory standards forbidding Cavalier from

using extension arms or boxing as methods of attachment. The Commission’s expertise gives it an advantage in determining whether Virginia Power’s prohibition of boxing is justified by safety and capacity

concerns or is merely a means of discriminating against Cavalier in

violation of the CSB order. Requiring exhaustion of the Pole Attachment Enforcement Procedure may therefore benefit any subsequent

judicial enforcement because all cease-and-desist orders must "include a statement of the findings of the Commission and the grounds

and reasons therefore." 47 U.S.C.A. § 312(c); see also Thetford, 907

F.2d at 448 (recognizing that a fully developed administrative record

is a readily apparent benefit of exhaustion requirements). Such development of the record would be beneficial in this case, for example,

because as the district court pointed out, the CSB order leaves "much

room for interpretation and continuing conflict." (J.A. at 1524.) Of

course, subsequent court action may not be necessary because Cavalier’s rights may be properly vindicated under the Pole Attachment

Enforcement Procedure. Cf. McKart, 395 U.S. at 195. Allowing the

complaint and enforcement procedures under the Pole Attachment

Act to go forward without interruption allows the Commission an

opportunity to use its full expertise to resolve pole attachment disputes and is thus more efficient than permitting the parties to seek aid

from the courts at various intermediate stages. Id. at 194. Moreover,

requiring a complainant to exhaust the Pole Attachment Enforcement

Procedure is clearly consistent with the relevant statutory scheme. 

Turning to Cavalier’s interest in judicial enforcement, it is clear

that initially seeking enforcement of the CSB order through a ceaseCAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO. 11
and-desist order issued by the Commission would not place a heavy

burden on Cavalier. Under the Pole Attachment Enforcement Procedure, Cavalier must file a motion with the Commission alleging Virginia Power’s failure to obey the CSB order and requesting that the

Commission order Virginia Power to show cause why it should not

cease and desist from violating the CSB order. 47 C.F.R. § 1.1412. If

the Commission grants the motion and orders Virginia Power to show

cause, Virginia Power would have at least 30 days to prepare for a

hearing on the issue of its failure to obey the CSB order. 47 U.S.C.A.

§ 312(c). "If after hearing, or a waiver thereof, the Commission determines that . . . a cease and desist order should issue, it shall issue such

order . . ." Id. This procedure poses no undue hardships for Cavalier

and the remedy is precisely what Cavalier seeks, that is, an order

requiring Virginia Power to adhere to the CSB order. There is no indication, therefore, that the Pole Attachment Enforcement Procedure is

inadequate nor that pursuit of such a remedy would cause undue prejudice in subsequent court proceedings. Due to the discretionary nature

of the Commission’s enforcement powers under the Pole Attachment

Act and the expertise of the Commission, combined with the minimal

burden placed on Cavalier, we conclude that the Commission should

be given the first opportunity to enforce the CSB order. 

IV.

In summary, we conclude that Cavalier failed to exhaust the Pole

Attachment Enforcement Procedure at 47 C.F.R. § 1.1412. We therefore reverse the district court’s grant of preliminary injunction and

remand with instructions to dismiss Cavalier’s complaint. 

REVERSED AND REMANDED WITH INSTRUCTIONS

12 CAVALIER TELEPHONE v. VIRGINIA ELECTRIC AND POWER CO.