                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                       June 24, 2005
                          FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                               No. 04-50838



     ASAP PAGING INC,


                                               Plaintiff-Appellant,


            versus


     CENTURYTEL OF SAN MARCOS INC;
     CENTURYTEL SERVICE GROUP LLC;
     CENTURYTEL SECURITY SYSTEMS OF
     TEXAS LP; CENTURYTEL INC,

                                               Defendants-Appellees.



            Appeal from the United States District Court
                  for the Western District of Texas
                            1:04-CV-181-SS



Before GARWOOD, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     ASAP   Paging,    Inc.   (ASAP)    appeals   the   dismissal       without

prejudice   of   its   antitrust,   Communications      Act,    and   tortious

interference     claims   against   CenturyTel    of    San    Marcos,     Inc.,

CenturyTel Service Group, L.L.C., CenturyTel Security Systems of


     *
       Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Texas, L.P., and CenturyTel, Inc. (collectively, CenturyTel).                    We

affirm the district court’s dismissal of the antitrust claims.                   We

vacate the dismissal of the remaining claims and remand to the

district court with instructions to stay these claims pending the

outcome of related proceedings in state court and with the Federal

Communications Commission (FCC).

                      Facts and Proceedings Below

     ASAP provides paging services and access to Internet service

providers   (ISPs)   for   customers       in   San   Marcos,   Texas    and    the

surrounding   communities      of   Fentress,          Kyle,    and     Lockhart.

CenturyTel is the incumbent local telephone company for San Marcos.

There is an extended local calling service (ELCS) arrangement

between the San Marcos exchange and several surrounding exchanges,

including those of Kyle, Fentress and Lockhart, such that calls

between these exchanges are charged at a local call rate.                      ASAP

obtained telephone numbers from the FCC pursuant to its license as

a commercial mobile radio service (CMRS) provider, and chose

numbers that are normally associated with the Fentress, Lockhart,

and Kyle exchanges.    Calls to these phone numbers are routed by the

relevant local telephone carriers to ASAP’s switch, which was

located in Austin, outside of the San Marcos ELCS area, during 2001

and 2002.

     From October 2001 through March 2002, CenturyTel customers in

San Marcos could dial ASAP’s numbers assigned to Lockhart, Fentress



                                       2
or Kyle as local calls.         Starting on April 1, 2002, however,

CenturyTel began charging these calls as long-distance calls. This

resulted in a greatly reduced call volume to ASAP’s customers

having these phone numbers.      According to CenturyTel, it started

charging calls to the ASAP numbers as toll calls once it determined

that the calls were going to ASAP’s switch in Austin.

     ASAP immediately filed a complaint with the Texas Public

Utility Commission (PUC), asking the commission to order CenturyTel

to stop assessing toll charges on the calls.          In an order issued

October 9, 2003, the PUC ruled against ASAP, finding that the

geographic   location   being    called,   rather    than   the   exchange

associated with the number being called, should determine whether

a call is rated local or long distance.      The commission also found

that CenturyTel was following the tariff it filed with the PUC in

assessing the toll charges.       ASAP’s appeal of the PUC order is

currently working its way through the Texas court system.

     In October or November of 2003, ASAP installed a switch in

Kyle, which is in the San Marcos ELCS area.         CenturyTel refused to

rate calls from San Marcos to this Kyle switch as local, however.

CenturyTel indicated to ASAP that ASAP would have to establish a

direct interconnection with CenturyTel through an interconnection

agreement, rather than the existing indirect connection through




                                    3
another telephone company, in order for the calls to be rated as

other than toll calls, regardless of the location of the switch.1

       In December of 2003, ASAP filed a Petition for Preemption with

the    FCC,      requesting   that    the       FCC   preempt    the   PUC   order   in

accordance with the FCC’s authority to preempt state regulation

that       has    the   effect       of     prohibiting         the    provision     of

telecommunications service.               See 47 U.S.C. §§ 253(d), 332(c)(3).

The FCC has not acted on this petition, which remains pending

before it.

       ASAP subsequently filed a complaint in the Western District of

Texas including federal and state antitrust claims, state tortious

interference claims, and claims for damages under sections 206 and

207 of the Communications Act (47 U.S.C. §§ 206, 207), alleging

violations of 47 U.S.C. §§ 201, 202, 251(a) and 251(b)(3).                     Id. at

38–42.      ASAP points out in the complaint that some of its claims

may be nearing the end of statute-of-limitations periods, and

suggests that abatement of the action pending disposition of the

petition for preemption to the FCC could be helpful to the court.

       CenturyTel filed a motion to dismiss under Rule 12(b)(6) of

the Federal Rules of Civil Procedure, arguing that (1) all of the

claims are barred by the filed rate doctrine, (2) the antitrust

claims are defective and barred as a matter of law by the Supreme


       1
       The Telecommunications Act of 1996 provides for interconnection agreements
between telecommunications carriers establishing compensation between the
carriers for various services. See 47 U.S.C. §§ 251(c)(1), 252. There is no
interconnection agreement between ASAP and CenturyTel.

                                            4
Court’s decision in Verizon Communications Inc. v. Law Offices of

Curtis V. Trinko, LLP, 124 S.Ct. 872 (2004), and (3) that the

claims under the Communications Act should be dismissed because of

the “primary jurisdiction” of the FCC.     After a response to the

motion, reply to the response, and a hearing, the district court

issued an order dismissing ASAP’s claims without prejudice.       The

court found that all of ASAP’s claims are barred by the filed rate

doctrine, and that, alternatively, the antitrust claims are barred

by the Trinko decision and the Communications Act claims are barred

by the doctrine of primary jurisdiction.    ASAP appeals.

                             Discussion

I.    Standard of Review

      This court reviews a dismissal for failure to state a claim de

novo.   United States ex rel. Riley v. St. Luke’s Episcopal Hosp.,

355 F.3d 370, 375 (5th Cir. 2004).    The claim should be dismissed

“only if ‘it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to

relief.’” Id. (quoting Conley v. Gibson, 78 S.Ct. 99, 102 (1957)).

II.   Filed Rate Doctrine and Doctrine of Primary Jurisdiction

      Under the “filed rate doctrine” (also sometimes called the

“filed tariff doctrine”), when a carrier is required to file a

tariff of its charges with a regulatory body, the charges filed are

the only charges that the carrier may lawfully assess.      Am. Tel. &

Tel. Co. v. Cent. Office Tel., Inc., 118 S.Ct. 1956, 1962–63

                                 5
(1998).   The carrier cannot deviate from the tariff, and the terms

of the tariff can be initially challenged only before the agency

that approved the tariff, not in a court.                  Arsberry v. Illinois,

244 F.3d 558, 562 (7th Cir. 2001); Southwestern Elec. Power Co. v.

Grant, 73 S.W.3d 211, 216–17 (Tex. 2002).                  ASAP argues that the

filed rate doctrine does not apply to its dispute with CenturyTel

because ASAP is not challenging the terms of the tariff, but rather

CenturyTel’s     (and    the    PUC’s)        interpretation       of   the   tariff:

specifically, whether calls to ASAP’s numbers should be classified

as local or toll for application of the tariff.

       There is no indication in the record that CenturyTel’s filed

tariff directly addresses which rate should be applied to calls to

numbers such as ASAP’s. Whether CenturyTel is following its tariff

such that the filed rate doctrine would apply therefore depends on

whether the PUC’s interpretation of CenturyTel’s tariff survives

review by the state appellate courts and the FCC.                       In the event

that   either   a   Texas      court    or     the   FCC   overturns      the      PUC’s

interpretation      of   the    tariff,       ASAP   may   have     rights    against

CenturyTel that will be lost through the running of statutes of

limitations.     Staying the action in the district court to avoid

this potential prejudice to ASAP is therefore the appropriate

course,   particularly      since      the    district     court    seems     to   have

intended that ASAP be able to present its claims again depending on




                                          6
the outcome of the other proceedings.2          In addition, this approach

would allow time for ASAP to obtain a ruling from the PUC on

whether CenturyTel was following its tariff in refusing to rate

calls to ASAP’s Kyle switch as local calls.3

      The district court also dismissed ASAP’s Communications Act

claims based on the doctrine of primary jurisdiction. The doctrine

of primary jurisdiction applies either when a government agency has

exclusive original jurisdiction over an issue within a case or when

a court having jurisdiction wishes to defer to an agency’s superior

expertise.    Arsberry, 244 F.3d at 563.        These circumstances do not

appear to apply to ASAP’s Communications Act claims.             Although the

district court indicated that ASAP had requested that “the FCC

exercise jurisdiction over each of its [Telecommunications Act]

claims,” ASAP’s Petition for Preemption does not appear to be an

assertion of Communications Act or Telecommunications Act claims

against CenturyTel.       Under 47 U.S.C. § 207, ASAP may complain of

being damaged by CenturyTel either to the FCC or in federal

district court, and ASAP has chosen to do so in district court.4


      2
        In addition to dismissing the claims without prejudice, the court asked
CenturyTel about its willingness to waive statute-of-limitations defenses.
      3
       The PUC appears to have exclusive primary jurisdiction on this question,
which it has not yet considered with respect to the Kyle switch. TEX. UTIL. CODE
§ 52.002(a) (stating that the PUC “has exclusive original jurisdiction over the
business and property of a telecommunications utility,” subject to certain
limitations).
      4
       Section 207 provides:
         “Any person claiming to be damaged by any common carrier subject to
   the provisions of this chapter may either make complaint to the Commission
   as hereinafter provided for, or may bring suit for the recovery of the

                                       7
ASAP’s petition for preemption is not a submission of its claims

against CenturyTel to the FCC, but instead it is essentially a

claim against the PUC, specifically an assertion that the PUC’s

interpretation is preempted by federal law.

       Even to the extent that the doctrine of primary jurisdiction

could be applied to any of ASAP’s claims, a court “must weigh the

benefits of obtaining the agency’s aid against the need to resolve

the litigation expeditiously and may defer only if the benefits of

agency review exceed the costs imposed on the parties.”              Wagner &

Brown v. ANR Pipeline Co., 837 F.2d 199, 201 (5th Cir. 1988).             When

dismissal may cause a plaintiff to lose rights, claims should be

stayed pending deferral to an agency rather than dismissed. Id. at

206.    Staying of the case pending the outcome of the state court

and FCC proceedings is therefore appropriate for any dismissals

based on the primary jurisdiction doctrine as well as for those

based on the filed rate doctrine.

III. Antitrust Claims

       The district court dismissed ASAP’s antitrust claims as barred

by the Supreme Court’s Trinko decision, in addition to dismissing

them under the filed rate doctrine.        Although we do not agree with

the district court’s apparent rationale, that the antitrust claims



  damages for which such common carrier may be liable under the provisions
  of this chapter, in any district court of the United States of competent
  jurisdiction; but such person shall not have the right to pursue both such
  remedies.”
  47 U.S.C. § 207.

                                      8
should    be   dismissed     by   virtue    of    being    premised    on    the

Telecommunications Act, dismissal of the antitrust claims was

nonetheless proper.

      The Supreme Court noted in Trinko that the Telecommunications

Act specifically provided that it would not impair or supersede

antitrust law.     Trinko, 124 S.Ct. at 878.        The Court held that the

Telecommunications Act did not expand the coverage of the antitrust

laws, however, so that the complained-of behavior would need to

constitute an antitrust violation in its own right for an antitrust

action to lie.     Id.   The Court characterized the claim in Trinko as

a refusal-to-deal claim and noted that the Sherman Act generally

does not restrict a private entity’s refusal to deal, except in

certain egregious circumstances such as those in Aspen Skiing Co.

v. Aspen Highlands Skiing Corp., 105 S.Ct. 2847 (1985).                 Trinko,

124 S.Ct. at 879. The Court proceeded to compare the complained-of

actions to those in Aspen Skiing, stating that Aspen Skiing was “at

or near the outer boundary of § 2 liability.”5            Id. at 879–80.     The

Court determined that the refusal to deal alleged in Trinko did



      5
        In Aspen Skiing, the defendant, who operated three ski resorts in the
area, decided to stop participating with the plaintiff, who operated the fourth
resort, in a joint all-resort ski ticket.       Trinko, 124 S.Ct. at 879; Aspen
Skiing, 105 S.Ct. at 2851–52. The defendant refused all efforts by the plaintiff
to reinstate the ticket, even an offer to essentially buy the defendant’s tickets
at retail price. Trinko, 124 S.Ct. at 879; Aspen Skiing, 105 S.Ct. at 2853. In
upholding a verdict for the plaintiff, the Court in Aspen Skiing found
significant that the defendant ended a previous voluntary practice that was
presumably profitable, and would not accept retail price. This indicated a
“willingness to forsake short-term profits to achieve an anticompetitive end.”
Trinko, 124 S.Ct. at 880; Aspen Skiing, 105 S.Ct. at 2861.

                                       9
“not fit within the limited exception recognized in Aspen Skiing,”

since factors indicating a willingness to forgo short-term profit

for anticompetitive purposes were absent.6 Id.

      ASAP’s complaint alleges that CenturyTel’s decision to rate

its customers’ calls to ASAP’s numbers as long distance was part of

a scheme to harm ASAP as a competitor in the one-way inbound call

capability market.        This is essentially a milder form of the

refusal-to-deal      claim   in   Trinko.      In   Trinko,    the   defendant

allegedly refused to connect competitors, while in this case,

CenturyTel allegedly refused to connect ASAP on favorable enough

terms.    CenturyTel’s conduct should therefore be compared to that

of the defendant in Aspen Skiing to see whether an antitrust action

can be recognized.

      Although ASAP claims that CenturyTel “voluntarily” rated calls

to their numbers as local from October 2001 through March 2002, the

complaint does not allege that CenturyTel understood where ASAP’s

switch was located at that time.            So there is no indication that

the prior arrangement was agreed to, and therefore presumably

profitable, in the manner of the ski ticket arrangement in Aspen

Skiing.    And there is otherwise nothing that would suggest that



      6
       In Trinko, a customer of a competing local exchange carrier sued Verizon,
the incumbent local exchange carrier, when Verizon fell behind on filling orders
by competing carriers for access to its network. Trinko, 124 S.Ct. at 876–77.
The plaintiff did not claim that Verizon had previously engaged in a voluntary
course of dealing with its competitors, and Verizon did not refuse an offer at
retail price, but rather refused (according to the plaintiff) to provide services
at a statutory wholesale rate. Id.

                                       10
CenturyTel is giving up short-term profits in hopes of running ASAP

out of business. CenturyTel gets more short-term profit, not less,

by charging the calls to ASAP’s numbers as toll calls.             Even if no

one calls ASAP anymore when the calls are rated as toll, CenturyTel

is not giving up profits as compared to rating calls to ASAP as

local, because CenturyTel’s customers pay a flat fee for local

service.     ASAP’s allegations do not fit into the Aspen Skiing

exception for refusal-to-deal claims, and therefore do not state a

cognizable antitrust claim.         The antitrust claims were therefore

properly dismissed.7

                                  Conclusion

      Because ASAP’s antitrust claims are barred by the Supreme

Court’s Trinko decision, we AFFIRM the district court’s dismissal

of   the   antitrust    claims.      We    VACATE   the   dismissal    of   the

Communications Act and tortious interference claims and REMAND to

the district court with instructions to stay these claims pending

the outcome of the state court appeals of the PUC order and the

Petition for Preemption with the FCC.




      7
        Texas law instructs that Texas antitrust provisions “be construed in
harmony with federal judicial interpretations of comparable federal antitrust
statutes.” TEX. BUS. COMM. CODE § 15.04. Dismissal of both the state and federal
antitrust claims was therefore proper.

                                      11
