                                                                              FILED
                           NOT FOR PUBLICATION                                 OCT 19 2012

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

WESTERN RADIO SERVICES                           No. 11-35703
COMPANY INCORPORATED,
                                                 D.C. No. 6:09-cv-06315-AA
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

CENTURYTEL OF EASTERN
OREGON, INC. and PUBLIC UTILITY
COMMISSION OF OREGON, (PUC),

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                      Argued and Submitted October 9, 2012
                               Portland, Oregon

Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.

       In this action under the Telecommunications Act of 1996, 47 U.S.C. § 251 et

seq., Plaintiff Western Radio Services Co. appeals the district court’s grant of

summary judgment on Western Radio’s claims for review of several orders of the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                          -2-

Public Utility Commission of Oregon and the district court’s dismissal of Western

Radio’s damages claim against CenturyTel of Eastern Oregon, Inc. We have

jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, we affirm.

      The district court dismissed as moot Western Radio’s claim for review of the

commission’s order that CenturyTel could on a case-by-case basis waive its rural

exemption under the Act (which exempts rural telephone companies from several

of the Act’s obligations). See 47 U.S.C. § 251(f). The district court did so

because, while the case was pending, CenturyTel’s parent company entered into a

binding agreement with the FCC promising that its subsidiaries would not assert

the rural exemption.

      Western Radio argues that this case falls into the “voluntary cessation”

exception to mootness. But because the FCC agreement is binding and does not

expire, there is “no reasonable expectation . . . that the alleged violation will recur.”

Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979) (citation and internal

quotation marks omitted).

      Western Radio also argues that its claim is not moot because without a

formal termination of CenturyTel’s rural exemption by the commission, Western

Radio cannot prevail on its damages claim against CenturyTel for breach of the

duty to negotiate in good faith (one of the duties exempted under the rural
                                         -3-

exemption). But terminating CenturyTel’s rural exemption now would not affect

the viability of Western Radio’s damages claim. A termination of the rural

exemption under § 251(f) is prospective, so even if the commission terminated

CenturyTel’s exemption today, that termination would not affect Western Radio’s

damages claim for CenturyTel’s alleged past failures to negotiate in good faith.

Thus, the district court correctly dismissed Western Radio’s claim as moot.

      Western Radio next appeals the district court’s grant of summary judgment

on Western Radio’s claim for review of the commission’s order denying its motion

for injunction. Western Radio sought an injunction enforcing its informal

interconnection arrangement with CenturyTel while the parties negotiated a formal

interconnection agreement. The district court correctly held that no provision of

the Act authorizes the commission to enforce an informal interconnection

arrangement not adopted pursuant to the Act’s procedures. See 47 U.S.C. § 252.

      Finally, Western Radio appeals the district court’s dismissal of its damages

claim against CenturyTel for failure to negotiate in good faith. The district court

held that Western Radio’s claim was barred by the “prudential limitation on

adjudication” doctrine, which requires that the commission address this type of

claim first before it may be brought in federal court. See W. Radio Servs. Corp. v.

Qwest Corp., 530 F.3d 1186, 1200 (9th Cir. 2008).
                                         -4-

      Western Radio argues that it should be excused from the doctrine because it

presented the claim to the commission but the commission refused to address it.

But Western Radio presented the claim in a procedurally defective petition, which

the commission dismissed without prejudice and with an invitation to re-submit a

corrected petition. Because Western Radio failed to adequately present the claim

to the commission, the district court correctly dismissed the claim under the

“prudential limitation on adjudication” doctrine. Autotel v. Nev. Bell Tel. Co., No.

10-15663, 2012 WL 3799919, at *3–5, --- F.3d ----, ----, (9th Cir. Sept. 4, 2012).

      AFFIRMED.
