The Ninth Circuit Court of Appeals today released an opinion in CLARK v. TIME WARNER, No. 07-55794, a federal appeal. The panel consisted of Alex Kozinski, Chief Judge, Diarmuid F. O’Scannlain, and William A. Fletcher, Circuit Judges.
O’SCANNLAIN, Circuit Judge:
We must decide whether the doctrine of primary jurisdiction 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 services, 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 transmit 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 transferred 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. . . .