Before: Wald, Williams, and Ginsburg, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
On Petition for Review of an Order of the Federal Communications Commission
Glenn B. Manishin and Christy C. Kunin, were on the briefs for petitioner.
Joel I. Klein, Acting Assistant Attorney General, Robert B. Nicholson and Marion L. Jetton, Attorneys, United States Department of Justice, William E. Kennard, General Counsel, Daniel M. Armstrong, Associate General Counsel, John E. Ingle, Deputy Associate General Counsel, and Laurel R.. Bergold, Counsel, Federal Communications Commission, were on the briefs for respondents.
Leon M. Kestenbaum and Michael B. Fingerhut, filed a brief for intervenor Sprint Communications Co., L.P.
Opinion for the Court filed by Circuit Judge Ginsburg.
Richman Bros. Records, Inc. seeks review of a decision issued by the staff of the Federal Communications Commission upholding the validity of the limitation of liability provision in a tariff filed by U.S. Sprint Communications Co. The FCC argues, among other things, that Richman's petition should be dismissed because Richman, having failed to ask the Commission to review the decision of the staff, did not exhaust its administrative remedies before seeking judicial review. We agree.
In 1987 Richman transferred its 12 existing WATS lines from Telesphere, Inc. to Sprint and at the same time added six new lines. For more than three months after the service was switched to Sprint, Richman was unable to make outgoing long-distance calls on its pre-existing lines. Richman sued Sprint in New Jersey state court for damages resulting from the three-month loss of service. Sprint defended on the ground that its agreement with Richman incorporated the tariff that Sprint then had on file with the FCC, which included a limitation upon Sprint's liability for damages. Meanwhile Sprint sued Richman in the United States District Court for the District of Kansas to recover unpaid long-distance charges.
The two actions were consolidated before the United States District Court for the District of New Jersey. The district court determined that under the doctrine of primary jurisdiction, the validity of the tariff provision limiting Sprint's liability should be submitted to the FCC. Richman's appeal of that decision was dismissed by the Third Circuit for want of a final order. See Richman Bros. Records, Inc. v. U.S. Sprint Communications Co., 953 F.2d 1431 (1991), cert. denied, 505 U.S. 1230 (1992).
Richman then duly applied to the FCC for a declaratory judgment that the provision of the tariff limiting Sprint's liability is not a defense to its state law action. The Common Carrier Bureau of the FCC, acting pursuant to delegated authority, see 47 C.F.R. Section(s) 0.91 (1996), rejected Richman's arguments and denied its petition. Without asking the Commission to review that decision Richman filed a petition for review in this court.
We conclude that Section(s) 5(c)(7) of the Communications Act, 47 U.S.C. Section(s) 155(c)(7), precludes the court from exercising jurisdiction over Richman's petition. That section makes the filing of an application for review by the Commission "a condition precedent to judicial review" of a decision taken pursuant to delegated authority.
Invoking United States v. Western Pacific R.R. Co., 352 U.S. 59, 72-73 (1956) and Reiter v. Cooper, 507 U.S. 258, 268-69 (1993), Richman contends that the jurisdictional hurdle raised by Section(s) 5(c)(7) presents no obstacle to judicial review of the staff decision in this case because it was occasioned by referral from a court under the doctrine of ...