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03-2990 In the matter of: Starnet, Inc.

By: dmc-admin//January 13, 2004//

03-2990 In the matter of: Starnet, Inc.

By: dmc-admin//January 13, 2004//

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“Instead of trying to divine how the FCC would resolve the ambiguity created by the word ‘location,’ we think it best to send this matter to the Commission under the doctrine of primary jurisdiction. This is not to say that the agency has exclusive jurisdiction, the original and strongest meaning of “primary jurisdiction.” See United States v. Western Pacific R.R., 352 U.S. 59, 64 (1956). We use the phrase in its weaker sense, as a doctrine that allows a court to refer an issue to an agency that knows more about the issue. ‘The doctrine of primary jurisdiction allows a federal court to refer a matter extending beyond the “conventional experiences of judges” or “falling within the realm of administrative discretion” to an administrative agency with more specialized experience, expertise, and insight.’ National Communications Association, Inc. v. AT&T Co., 46 F.3d 220, 222-23 (2d Cir. 1995). StarNet tells us that this is a no-no, because the FCC can’t meddle in bankruptcy law, indeed that the bankruptcy court itself has ‘exclusive jurisdiction’. Cf. Arsberry v. Illinois, 244 F.3d 558, 563-64 (7th Cir. 2001) (referral to FCC under primary jurisdiction inappropriate where the agency could not authorize the activities challenged in the suit). It is a considerable overstatement to call the bankruptcy court’s jurisdiction exclusive; many subjects with effects outside the bankruptcy may be adjudicated outside as well. See, e.g., FCC v. NextWave Personal Communications Inc., 537 U.S. 293 (2003), which allowed review outside bankruptcy of a license resale that affected a bankrupt estate. At all events, we would not ask the FCC any question about bankruptcy law; our need-and the subject on which the FCC can help-is to determine StarNet’s non-bankruptcy entitlement, if any, to compel Global to port the numbers. That turns on the 1996 Act and its implementing regulations, the bailiwick of the FCC rather than a bankruptcy court. Only the FCC can disambiguate the word ‘location’; all we could do would be to make an educated guess. And although the FCC’s position would be subject to review by the judiciary for reasonableness, the agency’s views are the logical place for the judiciary to start.”

Matter referred.

Appeal from the United States District Court for the Northern District of Illinois, Shadur, J., Easterbrook, J.

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