-4-
In the Initial Case Management Order, we suggested that the
defendants explain in their brief why this case is not governed by

the rule expressed in In_ re Tak Communications, Inc., 138 B.R. 568

,

579 (W.D. Wis. 1992), aff'd, 985 F.2a 916 (7th Cir. 1993), which
plaintiffs regard as authority for the proposition that the
doctrine of primary jurisdiction does not apply. Our initial
impression was that the FCC’s Second Report and Order is not the
“work in progress” defendants suggest it is, but is more aptly
described by the following language from the Tak opinion: “This is
not a case in which the FCC has yet to decide an issue or where its
stance is ambiguous; this is a case in which the FCC has
established a clear policy... .” 138 B.R. at 579.

Our initial impression has changed after a review of the
briefs and a closer examination of the Second Report and Order.
The relevant language of the Order is as follows:

. “In general terms, the handset should seek to
complete the call with the non-preferred cellular
carrier if the preferred cellular carrier has not
successfully delivered the call to the landline
carrier within 17 seconds after the call is
placed.”

. “The 17-second period is also generally consistent
with the combined time periods for two basic call
processing tasks that must be performed and
completed if a call attempt is to be successful
after the call is sent: in the first task, a
handset waits up to 12 seconds to receive a voice
channel assignment from a hbase station; in the
second task, the base station waits up to 5 seconds
to receive a voice channel transmission from the
handset.”


-~-7-
are referred to the FCC for its consideration and decision.
Further proceedings in this case are stayed pending resolution of
these issues by the FCC. In light of our ruling, plaintiffs’
motion for class certification in the Aggarwal v. Nokia case, 02 ¢
8808 is denied without prejudice to refiling after the stay is
lifted.
CONCLUSION

Defendants’ joint motion to stay this action pursuant to the
doctrine of primary jurisdiction is granted. Accordingly, the
following issues regarding the Second Report and Order of the
Federal Communications Commission are referred to the FCC for its
consideration and decision: what is meant by “call completion,”
“delivery of the call to the landline carrier,” and exactly what
action must be performed by the handset in 17 seconds. Further
proceedings in this case are stayed pending resolution of these
issues by the FCC.

The parties are directed to proceed before the FCC without
unnecessary delay and to seek resolution of the three questions
identified in this opinion. Inasmuch as the defendants have
successfully argued for primary jurisdiction, the court directs
them to take the initiative in obtaining the desired action of the
FCC. A status conference will be held in this court on December 3,

2003, at 11:00 a.m.


-3-

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.

Tice v. American Airlines, Inc., 288 F.3d 313, 317-18 (7th Cir.

2002). Although “{n]lo fixed formula exists for applying the
doctrine of primary jurisdiction,” courts in the Seventh Circuit
have considered the following factors in determining whether to
apply the doctrine: “(a) whether the question at issue is within
the conventional experience of judges; (b) whether the question at
issue involves technical or policy issues within the agency’s
particular field of expertise; (c) whether a determination would
involve the exercise of agency discretion; (d) the need for a
consistent and uniform rule; (e) the likelihood of inconsistent
rulings if not referred to the agency; (f) whether the issue has
already been before the agency; (g) whether judicial economy is
served by having the agency resolve the issue; and (h) whether the
referral will result in substantial delay and added expense.”

Gilmore v. Southwestern Bell Mobile Sys., L.L.C., 210 F.R.D. 212,

221 (N.D. Ill. 2001). Defendants contend that these factors are
met, and that we should apply the doctrine of primary jurisdiction
because the Second Report and Order is ambiguous as to what “call
completion” means and therefore ambiguous as to exactly what act

must be performed by the handset in 17 seconds.



. “After a handset receives a voice channel
assignment and begins transmission to a base
station on that channel, Conversation State is
reached. As noted, however, at this stage, the
handset’s voice channel transmission has not
necessarily been received at the base station, and
thus the handset may not necessarily be able to use
the voice channel to communicate with the base
station (and thence to the landline network). In
establishing a time limit for delivering the call
to the landline carrier, we are seeking to ensure
that communication between the handset and base
station on the voice channel goes beyond
Conversation State and reaches the point where the
handset’s voice channel transmission is indeed
received at the base station.”

(Second Report and Order, § 41 & n.52.) Plaintiffs argue that this
language clearly and unequivocally indicates that the 17-Second
Rule “deems a call ‘complete’ when it is ‘transmitted to the base
station and then to the landline phone system.’” (Plaintiffs’ Brief
in Opposition at 9.)

We disagree with plaintiffs; it is not clear from the language
exactly what act must be performed by the handset in 17 seconds.
True, the Second Report and Order states that the handset should
switch to the non-preferred carrier “if the preferred cellular
carrier has not successfully delivered the call to the landline
carrier within 17 seconds after the call is placed.” But, given
the complexity of the cellular call set-up, what is meant by
“delivery” of the call to the landline carrier? The second and
third excerpts quoted supra do not help us determine the answer to
that question (in fact, they muddy the waters), and the parties

differ, of course, as to what the phrase means.



-g-

In the Aggarwal _v. Nokia matter, 02 C 8808, Nokia’s motion to
dismiss or, in the alternative, stay this matter is granted (to the
extent that we have stayed this case rather than dismissing it).

Plaintiffs’ motion for class certification in Aggarwal is denied

without prejudice.

DATE: September 3, 2003

ENTER:

John 7. fGrady, United States Disfyfict Judge



‘
“Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
vor Magistrate Judge John F. Grady thon Assigned Judge
CASE NUMBER oo c oe T DATE September 3, 2003
. 02 C 8808
CASE In Re Wireless Telelphone 911 Calls Litigation
TITLE Aggarwal et al v. Nokia Corp et al.

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.)

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) im) Answer brief to motiondue___._ Reply to answer brief due

(4) Oo Ruling/Hearing on__—sset for att

(5) o Status hearing[held/continued to] [set for/re-set for]on__——s set for at

(6) o Pretrial conference[held/continued to] [set for/re-set for]on set for at

(7) o Trial[set for/re-set for] on __at

(8) o [Bench/Jury trial] [Hearing] held/continued to at.

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
O FRCP4(m) O General Rule 21 O FRCP41(a)(1) O FRCP41(a)(2).

(10) a [Other docket entry] Defendants’ joint motion to stay this action pursuant to the doctrine of primary

jurisdiction [G0 is granted. Accordingly, the following issues regarding the Second Report and Order of the
Federal Communications Commission are referred to the FCC for its consideration and decision: what is meant
by “call completion,” “delivery of the call to the landline carrier,” and exactly what action must be performed by
the handset in 17 seconds. Further proceedings in this case are stayed pending resolution of these issues by the
FCC. A status conference will be held in this court on December 3, 2003, at 11:00 a.m. In the Aggarwal v.
Nokia matter, 02 C 8808, Nokia’s motion to dismiss or, in the alternative, stay this matter [13-1] is granted (to the
extent that we have stayed this case rather than dismissing it). Plaintiffs’ motion for class certification in
Aggarwal [2-1] is denied without prejudice. ENTER MEMORANDUM OPINION.

glx [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court. Dee, Terrence@8612200; Gonnelli, Document
Adam@12129839331 Number

tices require A
No notices required. amumber of notices

X | Notices faxed by judge's staff, Lung pola sia’s'n
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initials


-6-

Thus, the rule expressed in the Tak case does not apply
because the Second Report and Order is ambiguous on this issue.
The intricacies of cellular call technology lead us to the
conclusion that resolving the ambiguities of the Order is not
within our conventional expertise, but is within the FCC’s field of
expertise. Moreover, there does not seem to be any dispute that a
consistent and uniform rule is necessary, and we are mindful of the
possibility of inconsistent rulings. The issue has already been
before the FCC, but the FCC has not spoken in a clear manner. We
believe that judicial economy will be served by having the agency
resolve the issue, and referral will not result in added expense.?
Referral may result in some delay, but as defendants have pointed
out, the FCC has begun an investigation concerning the compliance
of defendants’ phones with the 17-Second Rule. We are unpersuaded
by plaintiffs’ assertion that “dire consequences” would result from
referral to the FCC, given that they do not dispute that this
litigation affects only a small fraction of wireless 911 calls
because of the current dominance of digital technology.’

Given all these factors, the issues of what is meant by “call
completion,” “delivery of the call to the landline carrier,” and

exactly what action must be performed by the handset in 17 seconds

3’ In fact, referral may save some expense.

¥ As noted supra, the Second Report and Order dealt with calls in analog,
not digital, mode.



03-2597.033-J5CD September 3, 2003

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NOKIA CORPORATION and AT & T
WIRELESS SERVICES, INC.,

)
, )
In re WIRELESS TELEPHONE ) MDL-1521

911 CALLS LITIGATION ) 03 C 2597
)
)
)
VISHAL AGGARWAL and BRIDGET )
BYRNE, on behalf of themselves )
and a others similarly situated, )
)
Plaintiffs, )
)

v. ) 02 C 8808
)
}
)
)
)

Defendants.
MEMORANDUM OPINION

Before the court is defendants’ joint motion to stay this

action pursuant to the doctrine of primary jurisdiction. For the
reasons explained below, the motion is granted.'

In this multidistrict litigation, plaintiffs contend that

defendants’ wireless telephones fail to comply with the Second

Report and Order of the Federal Communications Commission (“FCC”)

concerning the revision of the FCC’s rules to ensure compatibility

Vv Also before the court is defendants’ motion to dismiss or to
alternatively stay this case pursuant to the doctrine of primary jurisdiction in
the above-captioned Aggarwal case. The issues are identical.



-2-
with Enhanced 911 emergency calling systems.? In the Second Report
and Order, the FCC approved three “call completion” methods for
processing wireless calls (in analog mode) to 911. One of those
methods is called “Automatic A/B Roaming-Intelligent Retry,” also
known as “A/B-IR.” The FCC required that a handset using the A/B-
IR method meet two conditions in order to address the problem of
delays in connecting to 911: (1) “provide effective feedback to
inform the user when 911 calli processing is underway and has not
finished”; and (2) “seek to complete the call with the non-
preferred cellular carrier if the preferred cellular carrier has
not successfully delivered the call to the landline carrier within
17 seconds after the call is placed.” (Second Report and Order, {I
39-41.) Plaintiffs contend that defendants’ phones do not comply
with the second requirement--the “17~Second Rule.”

Defendants have moved for a stay of this action pursuant to
the doctrine of primary jurisdiction. The Seventh Circuit has
explained the doctrine as follows:

When, in a suit based on a federal statute, a potentially

dispositive issue arises that is within the exclusive

jurisdiction of an administrative agency, the suit must

be stayed while the parties resort to the agency for that

resolution. ... 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

2

In re Revision of the Commission’s Rules to Ensure Compatibility with

Enhanced 911 Emergency Calling Systems, 14 F.C.C.R. 10954 (1999) (“Second Report
and Order”).