SW Legal studies in Business

Novel Regulatory Issues Referred to Regulatory Agency for Resolution

Appeals court held that a novel application of a regulation would require a plaintiff to file a complaint with the relevant regulatory agency for determination of the application of the regulatory scheme to the question involved, rather than allow the trial court to resolve a matter of regulatory importance.

Topic Court Procedure
Key Words

Primary Jurisdiction; Regulation

C A S E   S U M M A R Y

Time Warner Cable (TWC) offered a bundle of local and long distance calling services using Voice over Internet Protocol (VoIP) over its Internet service, rather than using a phone line. Clark talked to a TWC representative about the service but decided against it. TWC entered her as a new subscriber and informed the phone company, which disconnected her, and sent a TWC technician to install the service. She told the technician she did not want the service; he said call TWC, which resulted in much confusion, leaving her without phone service for eight days until her old service was restored. She sued TWC for slamming (switching telephone service without consent), for violating the RICO statute, and for fraud. The district court dismissed the suit, noting that the federal law against slamming applies only to “telecommunication carriers” (telephone companies), not to Internet providers such as TWC. The court held that she must file a complaint with the Federal Communications Commission (FCC). Clark appealed.


Affirmed. Under the doctrine of primary jurisdiction, the matter must be referred to the FCC. When a court determines that a claim implicates technical regulatory and policy questions that have not been resolved, such as whether TWC is a “telecommunication carrier” subject to the law against slamming, the matter should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch. This is not to obtain expert advice every time there is a question, but when there is a complicated major issue about a regulatory scheme that needs to be resolved. The parties may seek an administrative ruling that may or may not later result in litigation.


Clark v. Time Warner Cable, ---F.3d--- (9th Cir., 2008 WL 1885691, 2008)

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