Clark v. Time Warner ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
K. CLARK, both individually and as 
representative of the proposed
class, No. 07-55794
Plaintiff-Appellant,
v.  D.C. No.
CV-07-01797-VBF
TIME WARNER CABLE, a OPINION
corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted February 6, 2008*
Pasadena, California
Filed April 30, 2008
Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain, and William A. Fletcher,
Circuit Judges.
Opinion by Judge O’Scannlain
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
4693
CLARK v. TIME WARNER CABLE 4695
COUNSEL
Stephen Yagman, Yagman & Yagman & Reichmann, Venice
Beach, California, filed briefs for the plaintiff-appellant; Mar-
ion R. Yagman and Joseph Reichmann, Yagman & Yagman
& Reichmann, Venice Beach, California, were on the briefs.
Bryan A. Merryman, White & Case LLP, Los Angeles, Cali-
fornia, filed a brief for the defendant-appellee; Travers D.
Wood and Patrick O. Hunnius, White & Case LLP, Los
Angeles, California, and Matthew A. Brill, Latham & Wat-
kins LLP, Washington, D.C., were on the brief.
4696 CLARK v. TIME WARNER CABLE
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the doctrine of primary jurisdic-
tion permits a district court to refer a claim raising a novel and
technical question of federal telecommunications policy to the
Federal Communications Commission for its consideration in
the first instance.
I
Time Warner Cable (“TWC”) is one of the largest cable
operators in the United States. Among other products and ser-
vices, TWC markets “Digital Phone,” a bundle of local and
long distance calling services that utilize Voice over Internet
Protocol (“VoIP”) technology. VoIP uses the Internet to trans-
mit telephone signals rather than using the traditional public
switched telephone network (“PSTN”). As such, VoIP has the
capacity to transmit voice and data streams simultaneously,
whereas PSTN-based connections only have the capacity to
transmit one signal at a time.
Appellant K. Clark maintained two separate PSTN phone
lines in her home, one serviced by Vonage, the other serviced
by Verizon. On February 24, 2007, Clark received a telephone
call from a TWC sales representative soliciting her to switch
over to TWC’s Digital Phone package. Clark, initially
intrigued, conversed with the salesperson, who at one point
indicated that Digital Phone offered a six-hour backup that
would allow Clark to continue making calls and to dial 9-1-1
in the event her cable was disconnected. Clark was later trans-
ferred to a second sales representative who corrected the false
assertion made by the first, explaining to Clark that Digital
Phone did not offer any backup system at all. In response to
this news, Clark informed the sales representative that she
was not interested in TWC’s service and hung up the phone.
CLARK v. TIME WARNER CABLE 4697
TWC apparently misunderstood Clark’s statement. On
Thursday, March 8, 2007, the company disconnected Clark’s
Vonage and Verizon telephone service and dispatched a tech-
nician to her home to install a TWC cable line. When the
technician arrived at her door, Clark immediately informed
him that she was not interested in TWC’s service, and that she
had not authorized the switch. The technician told Clark to
contact TWC to resolve the problem and, according to Clark,
confusion ensued.
Clark alleges that she made multiple calls to TWC, was
continuously placed on hold, and was promised technicians to
restore her Vonage and Verizon service who never arrived.
She further contends that she was without any telephone ser-
vice from March 8 until March 16, 2007, when only one of
her telephone lines was reconnected.
On March 19, 2007, Clark filed a complaint against TWC
in the District Court for the Central District of California on
behalf of herself and those similarly situated. Her complaint
alleged that TWC violated 47 U.S.C. § 258(a), the federal
prohibition on “slamming”—the practice in which a telecom-
munications carrier switches a consumer’s telephone service
without the consumer’s consent. In addition, her complaint
alleged that TWC violated California state law’s prohibition
of the same conduct, Cal. Pub. Util. Code section 2889.5, and
the federal Racketeer Influenced and Corrupt Organizations
(“RICO”) statute, 18 U.S.C. § 1962. Finally, Clark pled
causes of action for fraud, fraudulent concealment, and negli-
gence.
Upon TWC’s motion, the district court dismissed Clark’s
complaint without prejudice. Noting that § 258(a) applies
only to “telecommunications carriers,” and that the question
of whether a VoIP provider meets this definition has never
been resolved, the district court referred Clark’s § 258(a)
claim to the Federal Communications Commission (“FCC”)
to consider the matter in the first instance.
4698 CLARK v. TIME WARNER CABLE
The district court further concluded that its referral of
Clark’s § 258(a) claim to the FCC warranted a dismissal with-
out prejudice of her remaining claims. In the alternative, it
dismissed all such claims for failure to state a claim upon
which relief could be granted. See Fed. R. Civ. P. 12(b)(6).
This appeal followed.1
II
A
[1] The Telecommunications Act of 1996 (the “Act”)
imposes a variety of obligations on telecommunications carri-
ers. The FCC is charged with the Act’s administration, along
with the administration of its predecessor, the Federal Com-
munications Act of 1934. 47 U.S.C. §§ 151, 154. Among
other things, the Act includes a prohibition on “slamming.”
Section 258(a) provides that “[n]o telecommunications carrier
shall submit or execute a change in a subscriber’s selection of
a provider of telephone exchange service or telephone toll ser-
vice except in accordance with such verification procedures as
the [FCC] shall prescribe.” Id. § 258(a) (emphasis added). In
addition, § 258(b) authorizes the FCC to prescribe procedures
for the award of damages when the verification procedures in
§ 258(a) are violated. Under this delegation of authority, the
FCC established detailed and comprehensive procedures
which telecommunications carriers must follow to verify a
subscriber’s consent to a carrier change,2 and established the
penalties for violations.3
1
In a concurrently filed memorandum disposition, we address Clark’s
petition for a writ of mandamus arising from the same district court deci-
sion. See Clark v. U.S. Dist. Court, No. 07-72899 (9th Cir. April 30,
2008).
2
While the particular procedures that are required vary depending on
how the telecommunications carrier markets its services, FCC regulations
require all carriers to confirm a subscriber’s change order, either by signa-
ture, voice recording, or by an independent third party. 47 C.F.R.
§ 64.1120(a)(1), (c)(1)-(3).
3
FCC regulations impose liability on carriers who violate § 258(a), 47
C.F.R. § 64.1140, and set forth detailed procedures for resolving unautho-
rized changes, id. § 64.1150-64.1160, and for reimbursing aggrieved sub-
scribers, id. § 64.1170.
 CLARK v. TIME WARNER CABLE 4699
[2] The emergence of VoIP technology created new chal-
lenges for the FCC, however, as existing regulations did not
contemplate the revolutionary changes IP-enabled services
entailed. Accordingly, the FCC issued a Notice of Proposed
Rulemaking seeking comment on how to define and to regu-
late all IP-enabled services, including VoIP, while maintain-
ing its “established policy of minimal regulation of the
Internet and the services provided over it.” In re IP-Enabled
Services, 19 F.C.C.R. 4863, 4865 ¶ 2 (2004) (footnote omit-
ted). The Notice posed two specific questions relevant to
Clark’s § 258(a) claim against TWC. First, it solicited com-
ment on whether VoIP services should be classified as “tele-
communications services”4 or “information services”5 under
the Act. In re IP, 19 F.C.C.R. at 4880-81 26-27, id. at 4886
¶ 35. Second, the FCC solicited comment on whether
§ 258(a)’s anti-slamming provision should apply to VoIP pro-
viders regardless of their statutory classification. Id. at 4910-
11 72.6
4
The Act defines “telecommunications service” as “the offering of tele-
communications for a fee directly to the public, or to such classes of users
as to be effectively available to the public, regardless of the facilities
used.” 47 U.S.C. § 153(46).
5
The Act defines “information service” as “the offering of a capability
for generating, acquiring, storing, transforming, processing, retrieving, uti-
lizing, or making available information via telecommunications, and
includes electronic publishing, but does not include any use of any such
capability for the management, control, or operation of a telecommunica-
tions system or the management of a telecommunications service.” Id.
§ 153(20).
6
As a matter of first impression, the second question may not seem rele-
vant in light of the first. Because § 258(a) only applies to “telecommunica-
tions carriers,” classifying VoIP as an “information service” would exempt
VoIP providers from the statute’s reach. Importantly, however, the Act
provides the FCC with the ancillary jurisdiction to extend requirements the
Act imposes on telecommunications carriers to information service pro-
viders as well. See In re IP, 19 F.C.C.R. at 4881 ¶ 27. The Act also grants
the FCC the authority to forbear from regulating telecommunications car-
riers in certain circumstances. See 47 U.S.C. § 160. Thus, whether the
FCC classifies VoIP as a “telecommunications service” or an “information
service” may not completely answer the question of how it will regulate
such technology under § 258(a) or any other provision.
4700 CLARK v. TIME WARNER CABLE
The district court determined that Clark’s § 258(a) claim
against TWC could not be resolved without first deciding
whether that statute applies to VoIP providers. Recognizing
that such question fell within the FCC’s rulemaking authority
and recognizing that its own decision could jeopardize the
uniform administration of the FCC’s regulatory scheme, the
district court invoked the primary jurisdiction doctrine to refer
Clark’s claim to the FCC.7
B
[3] The primary jurisdiction doctrine allows courts to stay
proceedings or to dismiss a complaint without prejudice pend-
ing the resolution of an issue within the special competence
of an administrative agency. A court’s invocation of the doc-
trine does not indicate that it lacks jurisdiction. Reiter v. Coo-
per, 507 U.S. 258, 268-69 (1993). Rather, the doctrine is a
“prudential” one, under which a court determines that an oth-
erwise cognizable claim implicates technical and policy ques-
tions that should be addressed in the first instance by the
agency with regulatory authority over the relevant industry
rather than by the judicial branch. See Syntek, 307 F.3d at
780.
[4] Primary jurisdiction applies in a limited set of circum-
stances. As we explained in Brown v. MCI Worldcom Net-
work Servs., 277 F.3d 1166 (9th Cir. 2002), the doctrine is not
designed to “secure expert advice” from agencies “every time
a court is presented with an issue conceivably within the
agency’s ambit.” Id. at 1172 (internal quotation marks and
7
In reviewing the district court’s decision, we note that no court of
appeals has considered the question of whether § 258 vests subscribers
with a private right of action. Because we conclude that the primary juris-
diction issue is dispositive, we do not address that question here. See Syn-
tek Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d 775, 782
(9th Cir. 2002) (declining to decide “whether a private right of action
exists for cancellation of a copyright registration” where the court referred
the case under the primary jurisdiction doctrine).
CLARK v. TIME WARNER CABLE 4701
citation omitted). Instead, it is to be used only if a claim “re-
quires resolution of an issue of first impression, or of a partic-
ularly complicated issue that Congress has committed to a
regulatory agency,” id. (citing Tex. & Pac. Ry. Co. v. Abilene
Cotton Oil Co., 204 U.S. 426, 442 (1907)), and if “ ‘protec-
tion of the integrity of a regulatory scheme dictates prelimi-
nary resort to the agency which administers the scheme,’ ” id.
(quoting United States v. Gen. Dynamics Corp., 828 F.2d
1356, 1362 (9th Cir. 1987)).8
[5] When a district court determines that primary jurisdic-
tion applies, it enables a “referral” of the issue to the relevant
agency.9 Reiter, 507 U.S. at 268. In practice, this means that
the court either stays proceedings or dismisses the case with-
out prejudice, so that the parties may seek an administrative
ruling. Syntek, 307 F.3d at 782 n.3 (citation omitted). “[T]here
is no formal transfer mechanism between the courts and the
agency”; rather, the parties are responsible for initiating
administrative proceedings themselves. Id.
C
Although “[n]o fixed formula exists for applying the doc-
trine of primary jurisdiction,” Davel Commc’ns, Inc. v. Quest
Corp., 460 F.3d 1075, 1086 (9th Cir. 2006) (internal quotation
marks and citation omitted), we have traditionally examined
the factors set forth in General Dynamics, and held that the
doctrine applies in cases where there is: “(1) [a] need to
resolve an issue that (2) has been placed by Congress within
8
As such, the doctrine is distinct from administrative exhaustion, which
prevents a federal court from exercising jurisdiction over a claim until all
required administrative remedies have been pursued. See Syntek, 307 F.3d
at 780-81.
9
As the Supreme Court has explained, “referral” is perhaps not the most
accurate term to describe this process, as most statutes do not authorize
courts to require an agency to issue a ruling. See Reiter, 507 U.S. at 268
n.3. Rather, the court merely stays or dismisses proceedings to allow the
plaintiff to pursue administrative remedies. Id.
4702 CLARK v. TIME WARNER CABLE
the jurisdiction of an administrative body having regulatory
authority (3) pursuant to a statute that subjects an industry or
activity to a comprehensive regulatory authority that (4)
requires expertise or uniformity in administration,” Syntek,
307 F.3d at 781 (citing Gen. Dynamics, 828 F.2d at 1362). In
considering these factors, we have previously explained that
the primary jurisdiction doctrine is designed to protect agen-
cies possessing “quasi-legislative powers” and that are “ac-
tively involved in the administration of regulatory statutes.”
Gen. Dynamics, 828 F.2d at 1365. Charged with the adminis-
tration of the Telecommunications and Federal Communica-
tions Acts, the FCC is such an agency. See 47 U.S.C. §§ 151,
154.
[6] In addition, Congress has specifically delegated respon-
sibility to the FCC to define “slamming” violations, see 47
U.S.C. § 258(a), and to prescribe the procedures for imposing
the appropriate penalties, see id. § 258(b). The question raised
by Clark’s complaint—whether a VoIP provider qualifies as
a “telecommunications carrier” or is otherwise subject to
§ 258(a)’s requirements—fits squarely within that delegation,
particularly because the FCC has already developed a detailed
and comprehensive regulatory scheme in response to the stat-
ute’s instructions.
[7] We need not determine whether the existence of this
scheme alone would warrant the referral to the FCC of a
§ 258(a) claim that raises no particularly novel issues, as
Clark’s claim raises a question of first impression. Moreover,
the FCC’s Notice of Proposed Rulemaking demonstrates that
the agency is actively considering how it will regulate VoIP
services and that the agency’s development of a uniform regu-
latory framework to confront this emerging technology is
important to federal telecommunications policy. We have pre-
viously approved of the use of the primary jurisdiction doc-
trine where it is unclear whether a federal statute applies to a
new technology. See Syntek, 307 F.3d at 781-82 (referring a
claim to the Registrar of Copyrights where it presented an
CLARK v. TIME WARNER CABLE 4703
issue of first impression as to “whether decompiled object
code qualifies for registration as source code under the Copy-
right Act and regulations” and where the issue was one “Con-
gress has committed to the Registrar of Copyrights”). Faced
with such question here, we conclude that the primary juris-
diction doctrine provided the district court with the authority
to refer Clark’s claim to the FCC.
III
We next turn to Clark’s remaining claims, each of which
the district court dismissed without prejudice for failure to
state a claim upon which relief could be granted. See Fed R.
Civ. P. 12(b)(6). We conclude that the district court’s decision
was not an abuse of discretion.
[8] Clark contends that TWC’s activities violated the fed-
eral RICO statute. To state a RICO claim, one must allege a
“pattern” of racketeering activity, which requires at least two
predicate acts. 18 U.S.C. §§ 1961(5), 1962(c); Turner v.
Cook, 362 F.3d 1219, 1229 (9th Cir. 2004). Clark contends
that TWC’s attempt to switch her service to its Digital Phone
package constituted wire fraud. While wire fraud is a cogniza-
ble RICO predicate, see 18 U.S.C. § 1961(1), Clark alleges no
additional predicate act. Accordingly, she has failed to allege
the pattern necessary to state a RICO claim.
[9] Clark also contends that TWC is liable for fraud based
on its salesperson’s misrepresentation that TWC’s Digital
Phone Service offered a six-hour backup and the ability to
dial 9-1-1 in the event a subscriber’s cable was disconnected.
Detrimental reliance is an essential element of a claim for
fraud under California state law. See Williamson v. Gen.
Dynamics Corp., 208 F.3d 1144, 1156 n.3 (9th Cir. 2000) (cit-
ing Witkin, Summary of California Law §§ 676-77, at 778-79
(9th ed. 1998)). According to Clark’s complaint, the salesper-
son’s false statement was corrected by the very next salesper-
son Clark spoke with. Clark never had the opportunity to act
4704 CLARK v. TIME WARNER CABLE
on the misrepresentation and, as such, failed to allege that she
suffered any detrimental reliance.
Finally, we deem Clark’s state law claims for fraudulent
concealment and negligence and her claim under Cal. Pub.
Util. Code section 2889.5 waived for purposes of this appeal.
This court “will not ordinarily consider matters on appeal that
are not specifically and distinctly argued in appellant’s open-
ing brief,” Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998)
(internal quotation marks and citation omitted), and we
decline to do so here.
IV
Based on the foregoing, the district court’s decision to dis-
miss Clark’s complaint without prejudice is
AFFIRMED.