                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

DAVEL COMMUNICATIONS, INC., a             
Delaware corporation; ACCESS
ANYWHERE LLC; KRISTIN MOELLE;
AUTOMATED TELECOM TECHNOLOGY
INC., dba A-Tel Inc.; CENTRAL
TELEPHONE COMPANY; STEVE                         No. 04-35677
PETERMAN, dba Colorado
Payphones; COMMUNICATIONS                         D.C. No.
                                               CV-03-03680-MJP
MANAGEMENT SERVICES LLC,
              Plaintiffs-Appellants,              OPINION
                 v.
QWEST CORPORATION, a Colorado
corporation,
               Defendant-Appellee.
                                          
        Appeal from the United States District Court
          for the Western District of Washington
        Marsha J. Pechman, District Judge, Presiding

                  Argued and Submitted
           December 8, 2005—Seattle, Washington

                       Filed June 26, 2006

      Before: Ronald M. Gould and Marsha S. Berzon,
 Circuit Judges, and William W Schwarzer,* District Judge.

                    Opinion by Judge Berzon

  *The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.

                                7035
           DAVEL COMMUNICATIONS v. QWEST CORP.         7039


                        COUNSEL

Brooks E. Harlow, Miller Nash LLP, Seattle, Washington, for
the plaintiffs-appellants.

Douglas P. Lobel and David A. Vogel, Arnold & Porter LLP,
McLean, Virginia, for the defendant-appellee.


                        OPINION

BERZON, Circuit Judge:

   The Federal Telecommunications Act of 1996 (“1996 Act”)
largely deregulated the telecommunications industry. At the
same time, the 1996 Act continued to regulate certain seg-
ments of the industry so as to increase competition overall.
For example, to promote more competitive market conditions,
the 1996 Act required incumbent local exchange carriers,
7040        DAVEL COMMUNICATIONS v. QWEST CORP.
including appellee Qwest Corp., to provide access to their
telephone lines and services essentially at their cost of provid-
ing the service.

   In 1996 and 1997, the Federal Communications Commis-
sion (“FCC”) issued a series of orders setting standards for
rates and services offered by local carriers to payphone ser-
vice providers. This case concerns claims by Davel Commu-
nications, Inc. and other payphone service providers
(“Davel”) that, under the FCC’s 1996 and 1997 orders, Qwest
owes reimbursements for periods in which it failed to file tar-
iffs implementing the new standards or filed tariffs not com-
pliant with the 1996 Act and its implementing regulations.
The district court held the reimbursement claims barred by the
filed-tariff doctrine and dismissed them without prejudice. In
addition, the court dismissed on statute of limitations grounds
Davel’s claims that Qwest overcharged it for fraud protection
services during the time Qwest failed to file required fraud
protection tariffs with the FCC.

   As a threshold matter, Qwest contends that the district court
lacked jurisdiction under the primary jurisdiction doctrine
over Davel’s claims and that we therefore lack jurisdiction to
hear this appeal. That is not so. The primary jurisdiction doc-
trine is “a doctrine specifically applicable to claims properly
cognizable in court that contain some issue within the special
competence of an administrative agency.” Reiter v. Cooper,
507 U.S. 258, 268 (1993) (emphasis added). In other words,
“[p]rimary jurisdiction is not a doctrine that implicates the
subject matter jurisdiction of the federal courts.” Syntek Semi-
conductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 780 (9th
Cir. 2002). Consequently, even where the doctrine requires an
issue to be referred to an administrative agency, it “does not
deprive the court of jurisdiction.” Reiter, 507 U.S. at 268.

  We therefore have jurisdiction of this appeal from the final
judgment of the district court pursuant to 28 U.S.C. § 1291,
and address Qwest’s primary jurisdiction doctrine contention
               DAVEL COMMUNICATIONS v. QWEST CORP.                     7041
on its merits in due course rather than as a threshold jurisdic-
tional issue. Cf. Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 93-94 (jurisdictional objections must be addressed
before proceeding to merits issues). After considering the par-
ties’ contentions, we vacate the district court’s order of dis-
missal and remand for further proceedings.

                           I.   Background

  Davel and the other appellants are payphone service pro-
viders that purchase telecommunications services from Qwest
in eleven of the fourteen states in which Qwest operates.
Because Qwest operates its own payphones, Davel is both a
competitor and a customer of Qwest. The services Qwest pro-
vides its payphone service provider customers include public
access lines, local usage to enable Davel to connect its pay-
phones to the telephone network for placing calls, and fraud
protection.

   Chapter 5 of the Federal Communications Act of 1934 as
amended by the 1996 Act regulates the telecommunications
industry. 47 U.S.C. § 151 et seq.1 As a general matter, the
Federal Communications Act requires common carriers sub-
ject to its provisions to charge only just and reasonable rates,
id. § 201, and to file their rates for their services with the FCC
or, in some cases, with state agencies. Id. § 203. As part of the
1996 Act’s general focus on improving the competitiveness of
markets for telecommunications services, § 276 substantially
modified the regulatory regime governing the payphone
industry by providing, in general terms, that dominant carriers
may not subsidize their payphone services from their other
telecommunications operations and may not “prefer or dis-
criminate in favor of [their] payphone service[s]” in the rates
they charge to competitors. Id. § 276(a). The 1996 Act directs
the FCC to issue regulations implementing these provisions,
  1
   All statutory references are to the 2000 edition of Title 47 of the United
States Code unless otherwise indicated.
7042          DAVEL COMMUNICATIONS v. QWEST CORP.
specifying in some detail the mandatory contents of the regu-
lations. Id. § 276(b).

   Pursuant to this directive, the FCC adopted regulations
requiring local exchange carriers such as Qwest to set pay-
phone service rates and “unbundled features” rates, including
rates for fraud protection, according to the FCC’s “new ser-
vices test” (sometimes “NST”). The new services test requires
that rates for those telecommunications services to which it
applies be based on the actual cost of providing the service,
plus a reasonable amount of the service provider’s overhead
costs. The FCC’s regulations required local exchange carriers
to develop rates for the use of public access lines by intrastate
payphone service providers that were compliant with the new
services test. The rates were to be submitted to the utility
commissions in the states in the local exchange carriers’ terri-
tory, which would review and “file” (i.e., approve) the rates.
See In re Implementation of the Pay Telephone Reclassifica-
tion and Compensation Provisions of the Telecommunications
Act of 1996, Report and Order, FCC 96-388, 11 F.C.C.R.
20,541 (Sept. 20, 1996); In re Implementation of the Pay
Telephone Reclassification and Compensation Provisions of
the Telecommunications Act of 1996, Order on Reconsidera-
tion, FCC 96-439, 11 F.C.C.R. 21,233 (Nov. 8, 1996) ¶ 163
(“Order on Recons.”) (collectively “Payphone Orders”). Also
pursuant to the regulations, local exchange carriers were
required to file their “unbundled features” rates with both the
state commissions and the FCC for approval. Order on
Recons. ¶ 163. The FCC required the local exchange carriers
to file the new tariffs for both kinds of rates by January 15,
1997, with an effective date no later than April 15, 1997. Id.

   In addition, the Payphone Orders required interexchange
carriers, mainly long distance telephone service providers, to
pay “dial-around compensation” to payphone service provid-
ers, including Qwest, for calls carried on the carrier’s lines
which originated from one of the provider’s pay telephones.2
  2
   Prior to the passage of the 1996 Act, callers could use an access num-
ber to bypass the payphone provider and place a call directly with the
               DAVEL COMMUNICATIONS v. QWEST CORP.                     7043
If, however, the payphone service provider was also an
incumbent local exchange carrier, as was Qwest, the Pay-
phone Orders required full compliance with the new tariff fil-
ing requirements, including the filing of cost-based public
access line rates and fraud protection rates, before the local
exchange carrier could begin collecting dial-around compen-
sation.

   On April 10, 1997, a coalition of regional Bell operating
companies (“the Coalition”), which included Qwest, sent a
letter to the FCC requesting a limited waiver of certain provi-
sions of the Payphone Orders. The Coalition wanted this
waiver so that the constituent companies could begin collect-
ing dial-around compensation before they were in full compli-
ance with the new regulations. Specifically, they requested an
extension of time to file intrastate payphone service rates
compliant with the new services test. These rates were due to
become effective on April 15, 1997, but the Coalition wanted
that deadline extended forty-five days from April 4, 1997.
(The FCC had earlier granted a similar extension with respect
to interstate rates.) The Coalition proposed that, if the FCC
granted the waiver and allowed the Coalition companies to
file rates that complied with the new services test by the
extended deadline, those companies would reimburse or pro-
vide a credit back to April 15, 1997, to customers purchasing
the services if the new rates were lower than the previous
non-compliant rates.

   On April 15, 1997, the FCC issued an order granting a lim-
ited waiver of the new services test rate-filing requirement. In

interexchange carrier. The interexchange carrier then collected the full tar-
iff, leaving the payphone provider with no compensation for the call. Pay-
phone providers were prohibited from blocking these calls. The new rules
requiring dial-around compensation changed this regime so as to assure
some compensation to the company that provided the payphone. See 47
U.S.C. § 276(b)(1)(A); see generally Global Crossing Telecomm., Inc. v.
FCC, 259 F.3d 740, 742, 747 (D.C. Cir. 2001) (tracing background of the
dial-around compensation regulations).
7044        DAVEL COMMUNICATIONS v. QWEST CORP.
re Implementation of the Pay Telephone Reclassification and
Compensation Provisions of the Telecommunications Act of
1996, Order, DA 97-805, 12 F.C.C.R. 21,370 (Apr. 15, 1997)
(“Waiver Order”). Specifically, the Waiver Order granted an
extension until May 19, 1997, for filing intrastate payphone
service rates compliant with the new services test, while at the
same time permitting incumbent local exchange carriers to
begin collecting dial-around compensation as of April 15,
1997. Id. ¶ 2. The Waiver Order stated that the existing rates
would continue in effect from April 15, 1997, until the new,
compliant rates became effective (“the waiver period”). The
NST-compliant rates were to be filed with state utility com-
missions, which were required to act on the filed rates “within
a reasonable time.” Id. ¶ 19 n.60; see also id. ¶¶ 2, 18-19, 25.
If a local exchange carrier relied on the waiver, it was
required to reimburse its customers “from April 15, 1997 in
situations where the newly [filed] rates, when effective, are
lower than the existing [filed] rates.” Id. ¶¶ 2, 20, 25. The
order emphasized that the waiver was “limited” and “of brief
duration.” Id. ¶¶ 21, 23.

   In 2002, in a decision subsequently affirmed by the D.C.
Circuit, the FCC clarified the requirements of the new ser-
vices test as it applies to the payphone industry, making it
clear that, as in other areas in which it has been applied, the
new services test requires forward looking, cost-based rates.
In re Wis. Pub. Serv. Comm’n, Mem. Op. & Order, 17
F.C.C.R. 2051 (2002) (“Wisconsin Order”), aff’d New Eng.
Pub. Commc’ns Council, Inc. v. FCC, 334 F.3d 69 (D.C. Cir.
2003). That is, the rates must take into account only the ongo-
ing costs of providing the service, and may not recover previ-
ously incurred costs, such as those incurred in building the
telephone system infrastructure. In so holding, the FCC
rejected the Coalition’s challenge to its authority to regulate
intrastate rates and to require forward-looking cost estimates
in determining rates, as well as the Coalition’s challenges to
the agency’s determination of how overhead costs may be
allocated. Id. ¶¶ 31-58. In 2002, after the FCC’s decision in
             DAVEL COMMUNICATIONS v. QWEST CORP.             7045
the Wisconsin Order, Qwest dramatically reduced its public
access line and fraud protection tariffs.

   Davel maintains that the rates Qwest charged for public
access lines services from 1997 to 2002 did not comply with
the new services test. Because Qwest relied on the Waiver
Order by collecting dial-around compensation beginning on
April 15, 1997, argues Davel, Qwest is required by the Act
itself and by the Waiver Order to refund the difference
between the non-compliant rates charged from 1997 to 2002
and the compliant rates filed in 2002.

   Davel further contends that: (1) from 1997 to 2002, rather
than filing NST-compliant public access line rates in any of
eleven states in which the plaintiff payphone service providers
operate, Qwest was pursuing legal challenges to the FCC’s
authority to regulate intrastate public access line rates; (2) the
first time Qwest filed NST-compliant rates in the states at
issue was in 2002; (3) the rates filed in 2002, which were sub-
stantially lower than the 1997-2002 rates, show that Qwest’s
1997-2002 rates were not compliant with the new services
test. On these premises, Davel argues that the Waiver Order
requires Qwest to reimburse it for the difference between the
compliant rate filed in 2002 and the non-compliant rates actu-
ally charged for the entire preceding period, beginning on
April 15, 1997.

   In addition, according to Davel, Qwest was required pursu-
ant to the Order on Recons. to file with the FCC rates compli-
ant with the new services test for fraud protection services and
other “unbundled features.” Davel alleges that Qwest failed to
file compliant fraud protection rates from 1997 until 2002 or
2003, and that this lapse violated the Act. Pursuant to 47
U.S.C. §§ 206-207, Davel asserts, it is entitled to recover
damages for this violation measured by the difference
between the amount it was charged and the compliant rates.

  Qwest moved to dismiss Davel’s complaint under Federal
Rule of Civil Procedure 12(b)(6), arguing (1) that Davel’s
7046        DAVEL COMMUNICATIONS v. QWEST CORP.
claims arising out of the payphone service rates are barred by
the filed-rate doctrine; and (2) that Davel’s claim arising from
the fraud protection rates is time-barred under the applicable
statute of limitations. In the alternative, Qwest, invoking the
primary jurisdiction doctrine, requested a stay and referral of
the threshold legal issues to the appropriate state and federal
agencies. The district court granted Qwest’s motion to dis-
miss, holding Davel’s refund claims under the Waiver Order
barred by the filed-rate doctrine and its fraud protection
claims barred by the two year statute of limitations set out in
47 U.S.C. § 415. The court dismissed Davel’s complaint with-
out prejudice to Davel’s asserting the claims before the appro-
priate administrative tribunals. We review de novo the district
court’s dismissal for failure to state a claim under Fed. R. Civ.
P. 12(b)(6). Madison v. Graham, 316 F.3d 867, 869 (9th Cir.
2002).

                II.   The Filed-Rate Doctrine

   [1] The filed-rate doctrine, also known as the filed-tariff
doctrine, applies in regulated industries in which federal law
requires common carriers publicly to file schedules of ser-
vices and the rates or tariffs to be charged for those services.
The doctrine requires that common carriers and their custom-
ers adhere to tariffs filed and approved by appropriate regula-
tory agencies. Evanns v. AT&T Corp., 229 F.3d 837, 840 (9th
Cir. 2000). “Under the doctrine, once a carrier’s tariff is
approved by the FCC [or an appropriate state agency], the
terms of the federal tariff are considered to be ‘the law’ and
to therefore ‘conclusively and exclusively enumerate the
rights and liabilities’ as between the carrier and the custom-
er.” Id. (quoting Marcus v. AT&T Corp., 138 F.3d 46, 56 (2d
Cir. 1998)).

    Not only is a carrier forbidden from charging rates
    other than as set out in its filed tariff, but customers
    are also charged with notice of the terms and rates
    set out in that filed tariff and may not bring an action
             DAVEL COMMUNICATIONS v. QWEST CORP.               7047
    against a carrier that would invalidate, alter or add to
    the terms of the filed tariff.

Id. (citations omitted). That is, the doctrine bars suits chal-
lenging rates which “if successful, would have the effect of
changing the filed tariff.” Brown v. MCI WorldCom Network
Servs., Inc., 277 F.3d 1166, 1170 (9th Cir. 2002).

   The regulatory scheme of the Federal Communications Act,
the source since 1934 of the filed-rate doctrine in the telecom-
munications industry, see Evanns, 229 F.3d at 840, was fun-
damentally altered with the passage of the 1996 Act.
Although the Federal Communications Act prohibited the
FCC from eliminating for any covered carriers the require-
ment that they obtain advance approval of schedules of rates
from the agency and adhere to the approved tariffs, see Ting
v. AT&T, 319 F.3d 1126, 1131-32 (9th Cir. 2003) (citing MCI
Telecomms. Corp. v. AT&T Corp., 512 U.S. 218, 231 (1994)),
the 1996 Act expressly permitted the FCC to “detariff” (to use
the telecommunications industry’s “horrid neologism,” Veri-
zon Del., Inc. v. Covad Commc’ns Co., 377 F.3d 1081, 1089
(9th Cir. 2004)) large swaths of the telecommunications
industry. 47 U.S.C. § 160(a); see Ting, 319 F.3d at 1132.
Where the FCC has done so, the filed-rate doctrine no longer
applies. See Verizon Del., 377 F.3d at 1088. Conversely,
where tariff filing is still required by statute or regulation, the
filed-rate doctrine continues to apply with full force. Id. at
1089.

   [2] In its regulations implementing the requirements of
§ 276, the FCC chose to require filing of tariffs for certain
aspects of the payphone system while leaving others to the
free market. See Order on Recons. With respect to the public
access line rates at issue here, the FCC indisputably imposed
a rate-filing requirement. See id. ¶ 163. The Commission sim-
ilarly imposed a tariffing requirement with respect to fraud
protection rates. Id. Intrastate public access line tariffs are to
be filed with state regulatory agencies, while rates for unbun-
7048           DAVEL COMMUNICATIONS v. QWEST CORP.
dled services, including fraud protection, are to be filed with
both the state agencies and the FCC. Id. Thus, while Davel
may be correct as a general matter that “the filed-rate doctrine
is all but dead in telecommunications law,” the “but” qualifier
applies here, as the doctrine is not dead with respect the rates
at issue in this case.

   [3] Nevertheless, the filed-tariff doctrine does not bar a suit
to enforce a command of the very regulatory statute giving
rise to the tariff-filing requirement, even where the effect of
enforcement would be to change the filed tariff. Reiter, 507
U.S. at 266 (holding, in a motor carrier case, that the filed-rate
doctrine applies to common-law claims but “assuredly does
not preclude avoidance of the tariff rate . . . through claims
and defenses that are specifically accorded by the [Interstate
Commerce Act] itself”).3 This principle applies to regulations
implementing the statutory command as well as to the statute
itself. See ICC v. Transcon Lines, 513 U.S. 138, 147 (1995)
(“Carriers must comply with the comprehensive scheme pro-
vided by the statute and regulations promulgated under it, and
their failure to do so may justify departure from the filed
rate.”). That is to say, the filed-tariff doctrine is “open to repu-
diation by the FCC.” Verizon Del., 377 F.3d at 1089; see
Transcon Lines, 513 U.S. at 147 (regulating agency may
require “departure from a filed rate when necessary to enforce
other specific and valid regulations adopted under the Act,
   3
     We note that the question whether the 1996 Act provides a private right
of action to enforce payphone regulations such as the Waiver Order is
pending before the United States Supreme Court. See Metrophones Tele-
comms., Inc. v. Global Crossing Telecomms., Inc., 423 F.3d 1056, 1065-
70 (9th Cir. 2005), cert. granted 126 S. Ct. 1329 (Feb. 21, 2006). How-
ever, as Qwest emphatically stated in its October 3, 2005, Fed. R. App. P.
28(j) letter, it has never disputed in this case that Davel has such a right
of action. We therefore decline to address the issue, assuming for purposes
of this case only that Davel does have a right of action. See Burks v.
Lasker, 441 U.S. 471, 475-76 & n.5 (1979) (the existence of a private right
of action is not a jurisdictional question, and, where not raised, may be
assumed without being decided).
               DAVEL COMMUNICATIONS v. QWEST CORP.                    7049
regulations that are consistent with the filed rate system and
compatible with its effective operation.”).

   [4] Here, the FCC, in adopting the Waiver Order, expressly
required a “departure from a filed rate” as to the public access
line tariffs on file during the waiver period. The Waiver Order
extended the time for Qwest to file NST-compliant rates and
provided that existing, non-compliant rates would remain on
file in the interim. The order further provided that once the
NST-compliant rates became effective, Qwest was to reim-
burse its customers, including Davel, for the difference
between the new rates and the rates on file after April 15,
1997. As the Order thus expressly provided that Qwest’s cus-
tomers would pay rates different from those on file during the
waiver period for certain services obtained during that time,4
it is not consistent with a strict application of the filed-rate
doctrine to the non-compliant rates on file after April 15,
1997. Consequently, the filed-rate doctrine does not stand as
a bar to Davel’s claims enforcing the Waiver Order’s reim-
bursement requirement. This is so even though the lawsuit, in
effect, challenges the tariffs on file between 1997 and 2002
and, if successful, would result in Davel paying an amount for
public access line services different from that provided in
those tariffs.

  [5] Accordingly, we hold that Davel’s claims are not barred
by the filed-rate doctrine.5

           III.   The Primary Jurisdiction Doctrine

   The conclusion that the filed-rate doctrine does not pre-
  4
     Qwest does not raise any challenge to the FCC’s authority to promul-
gate such an order, and indeed, was part of the Coalition that requested it.
   5
     The parties’ arguments with regard to the fraud protection rates con-
cern only the district court’s statute of limitations decision. We therefore
do not decide on this appeal whether the filed-rate doctrine is applicable
to that claim.
7050         DAVEL COMMUNICATIONS v. QWEST CORP.
clude Davel’s lawsuit does not mean that the case can go for-
ward. Davel’s refund claim presents several issues that
arguably implicate technical and policy considerations. Qwest
contends that under the primary jurisdiction doctrine, these
issues must be addressed in the first instance by the agencies
with regulatory authority over the payphone industry.

   [6] The doctrine of primary jurisdiction “is a prudential
doctrine under which courts may, under appropriate circum-
stances, determine that the initial decisionmaking responsibil-
ity should be performed by the relevant agency rather than the
courts.” Syntek, 307 F.3d at 780. “The doctrine is applicable
whenever the enforcement of a claim subject to a specific reg-
ulatory scheme requires resolution of issues that are ‘within
the special competence of an administrative body.’ ” Farley
Transp. Co. v. Santa Fe Trail Transp. Co., 778 F.2d 1365,
1370 (9th Cir. 1985) (quoting United States v. W. Pac. R.R.
Co., 352 U.S. 59, 63 (1956)). The doctrine does not, however,
“require that all claims within an agency’s purview be
decided by the agency.” Brown, 277 F.3d at 1172; accord
United States v. Gen. Dynamics Corp., 828 F.2d 1356, 1363
(9th Cir. 1987) (“While it is certainly true that the competence
of an agency to pass on an issue is a necessary condition to
the application of the doctrine, competence alone is not suffi-
cient.”). “Nor is [the primary jurisdiction doctrine] intended
to ‘secure expert advice’ for the courts from regulatory agen-
cies every time a court is presented with an issue conceivably
within the agency’s ambit.” Brown, 277 F.3d at 1172.

   [7] Although “[n]o fixed formula exists for applying the
doctrine of primary jurisdiction,” W. Pac., 352 U.S. at 64,
courts in this circuit traditionally look for four factors identi-
fied in General Dynamics. Under this test, the doctrine
applies where there is “(1) the need to resolve an issue that (2)
has been placed by Congress within the jurisdiction of an
administrative body having regulatory authority (3) pursuant
to a statute that subjects an industry or activity to a compre-
            DAVEL COMMUNICATIONS v. QWEST CORP.                7051
hensive regulatory scheme that (4) requires expertise or uni-
formity in administration.” Gen. Dynamics, 828 F.2d at 1362.

   Where an issue falls within an agency’s primary jurisdic-
tion, the district court enables “referral” of the issue to the
agency. Reiter, 507 U.S. at 268. As we have explained,

    “Referral” is the term of art employed in primary
    jurisdiction cases. In practice, it means that a court
    either stays proceedings, or dismisses the case with-
    out prejudice, so that the parties may pursue their
    administrative remedies. There is no formal transfer
    mechanism between the courts and the agency;
    rather, upon invocation of the primary jurisdiction
    doctrine, the parties are responsible for initiating the
    appropriate proceedings before the agency.

Syntek, 307 F.3d at 782 n.3 (citations omitted).

   Qwest argues that the primary jurisdiction doctrine requires
“referral” of two issues necessary to the resolution of this
case: First, Qwest contends that, to assure uniformity of
administration, the FCC, rather than the court, should resolve
the parties’ dispute as to the scope of the Waiver Order—that
is, whether, as Qwest would have it, the refund obligation was
limited to the forty-five-day period in which Qwest was to
bring its public access line rates into compliance with the new
services test, or whether, as Davel asserts, the obligation was
open-ended, continuing until Qwest filed rates which were in
fact compliant. Second, Qwest argues, whether Davel is enti-
tled to any refund depends on whether the public access line
rates Qwest filed prior to 2002 were in fact not compliant
with the new services test, as Davel alleges. Qwest maintains
that this determination will require a highly technical applica-
tion of the new services test, a task within the primary juris-
diction of the state utility commissions and the FCC.
7052          DAVEL COMMUNICATIONS v. QWEST CORP.
                                    A.

   Relying on Cost Management Services, Inc. v. Washington
Natural Gas Co., 99 F.3d 937, 948-49 (9th Cir 1996), Davel
asserts as an initial matter that the primary jurisdiction doc-
trine does not apply at this juncture—that is, when a case is
at the motion to dismiss stage. Davel maintains that it has ade-
quately alleged that the public access line rates Qwest filed
prior to 2002 were not cost-based, so the threshold issue of
whether the rates were consistent with the new services test
must be resolved in Davel’s favor, and it is therefore entitled
to go forward with its case. Qwest, in contrast, maintains that
the proper interpretation of an agency order, here the Waiver
Order, is an issue which must be decided by the agency,
regardless of the plaintiffs’ factual allegations.6

   In Cost Management, the plaintiff claimed that the owner
of the natural gas delivery facilities violated its own filed tar-
iff in an effort to monopolize the local natural gas market, in
violation of the Sherman Antitrust Act. Id. at 940-41. The
defendant sought dismissal on the ground, among others, that
the issue whether it had violated the tariff was within the pri-
mary jurisdiction of the state utility commission. Id. at 941,
948-49. We held the primary jurisdiction doctrine inapplica-
ble on the grounds that the facts alleged in the complaint
established a violation of the tariff, and thus, on a 12(b)(6)
motion, the issue to be referred “must necessarily be resolved
in favor of [the plaintiff].” Id. at 949. Implicit in this conclu-
sion was the recognition that resolving the question whether
there was a violation of an applicable tariff did not necessarily
involve complex issues requiring agency expertise. Cf. W.
Pac., 352 U.S. at 69; Brown, 277 F.3d at 1173.
  6
   Qwest additionally contends that the issue of its rates’ compliance with
the new services test may be referred on a motion to dismiss. Because we
conclude that referral of the proper construction of the Waiver Order is
required, we do not address this contention.
            DAVEL COMMUNICATIONS v. QWEST CORP.            7053
   [8] Reading Cost Management against the background of
established Rule 12(b)(6) jurisprudence, it becomes clear that
Cost Management’s primary jurisdiction holding was but a
straightforward application in the context of the primary juris-
diction doctrine of standard principles of pleading applicable
to any motion to dismiss. Under these principles, “the federal
courts may not dismiss a complaint unless ‘it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations.’ ” Kwai Fun Wong v.
United States, 373 F.3d 952, 956-57 (9th Cir. 2004) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).

   [9] In the context of the primary jurisdiction doctrine, the
analogous question is whether any set of facts could be
proved which would avoid application of the doctrine. The
superordinate question governing the primary jurisdiction
doctrine is “whether the reasons for the existence of the doc-
trine are present and whether the purposes it serves will be
aided by its application in the particular litigation.” W. Pac.,
352 U.S. at 64. Whether this question can be answered on a
motion to dismiss depends on the nature of the case.

   [10] Where the issues raised by a complaint necessarily
implicate policy concerns requiring application of the primary
jurisdiction doctrine, a federal court may suspend its resolu-
tion of those issues in favor of their referral to the governing
agency. Cost Management by contrast did not necessarily
involve policy concerns committed to an agency, and our
decision there simply conforms the primary jurisdiction doc-
trine with the usual principles that apply on motions to dis-
miss. In other words, where, as in Cost Management, the
allegations of the complaint do not necessarily require the
doctrine’s applicability, then the primary jurisdiction doctrine
may not be applied on a motion to dismiss; if, on the other
hand, the primary jurisdiction doctrine applies on any set of
facts that could be developed by the parties, there is no reason
to await discovery, summary judgment, or trial, and the appli-
cation of the doctrine properly may be determined on the
7054        DAVEL COMMUNICATIONS v. QWEST CORP.
pleadings. The Waiver Order construction issue in this case,
as will appear, is of the latter variety.

                              B.

   The threshold dispute regarding the refund claim centers on
whether the Waiver Order entitles Davel to the refund, assum-
ing the facts Davel has alleged. Specifically, the parties dis-
pute whether the Waiver Order’s reimbursement requirement
is limited to the forty-five-day period of the Order’s waiver of
the rate filing deadline, or whether the reimbursement obliga-
tion instead extends indefinitely—that is, until Qwest’s NST-
compliant rates are on file and effective. Davel contends that
the plain language of the Waiver Order provides for an open-
ended obligation. Qwest maintains, in contrast, that the
waiver provided by the order was expressly limited to a forty-
five-day period, and that it would be absurd to construe the
reimbursement obligation as extending beyond that period.
Qwest further contends that if, as Davel alleges, it failed to
file NST-compliant rates at all during the forty-five-day
extension provided by the Waiver Order, then the Order’s
refund obligation never arose, and Davel’s only remedy was
a reparations claim filed with the FCC at the time of the
missed deadline. Finally, Qwest argues, this threshold dispute
over the scope and construction of the Waiver Order must be
referred to the FCC under the primary jurisdiction doctrine.

   [11] We agree that the primary jurisdiction doctrine
requires referral of the threshold issue of the scope of the
Waiver Order. Both this court and the Supreme Court have
held that the interpretation of an agency order issued pursuant
to the agency’s congressionally granted regulatory authority
falls within the agency’s primary jurisdiction where the order
reflects policy concerns or issues requiring uniform resolu-
tion. See, e.g., Rilling v. Burlington N. R.R. Co., 909 F.2d
399, 401 (9th Cir. 1990) (holding that the resolution of plain-
tiff’s claim required a proper interpretation of an ICC merger
order, an issue within ICC’s primary jurisdiction); see also
            DAVEL COMMUNICATIONS v. QWEST CORP.            7055
Serv. Storage & Transfer Co. v. Virginia, 359 U.S. 171, 177
(1959) (holding that the interpretation of a certificate of con-
venience and necessity issued by ICC to an interstate motor
carrier was an issue within the primary jurisdiction of the
ICC). These decisions are grounded in the central focus of the
primary jurisdiction doctrine, the desirability of uniform
determination and administration of federal policy embodied
in the agency’s orders. Serv. Storage, 359 U.S. at 177; Rilling,
909 F.2d at 401.

   [12] Given this emphasis on achieving uniformity in policy
determination and administration, the application of the pri-
mary jurisdiction doctrine to the issue of the scope of the
FCC’s Waiver Order is particularly compelling. The Waiver
Order was issued pursuant to the congressional mandate that
the FCC regulate the payphone industry and, specifically, that
it provide for payphone service providers to receive compen-
sation from interexchange carriers and for incumbent local
exchange carriers to eliminate cost subsidies for their pay-
phone systems. Davel observes that the Waiver Order’s plain
language may be read as open-ended. Opposed to that obser-
vation is the consideration that, in adopting the Order, the
FCC initially contemplated that all local exchange carriers
would file NST-compliant tariffs within the forty-five-day
waiver period. As the current dilemma was not one contem-
plated at the outset by the agency, interpreting the Waiver
Order requires consideration of policy considerations similar
to those that gave rise to the FCC’s 1996 and 1997 orders
applying the new services test to intrastate payphone rates, as
well as to the Waiver Order itself.

   More specifically, with the issuance of the Wisconsin
Order in 2002, it became apparent that the initial expectation
of prompt filing of NST-compliant tariffs may not have been
fulfilled. Thus, beyond issues of initial FCC intent, any appli-
cation of the Order to the several-year period beyond the orig-
inal forty-five-day waiver term—a several-year period in
which the existence of NST-compliant tariffs was uncertain—
7056        DAVEL COMMUNICATIONS v. QWEST CORP.
would raise policy questions not resolved by the Waiver
Order itself. Those policy questions include whether applying
the refund obligation should depend on whether or not there
were good-faith efforts to file compliant rates; whether future
enforcement of tariffs will be impeded by allowing ratepayers
to complain about noncompliant rates years after the fact; and,
conversely, whether a narrow construction of the Waiver
Order would reward intentional non-compliance with FCC
orders under the 1996 Act.

   We cannot say without addressing such policy consider-
ations how the Waiver Order should be applied in the circum-
stances of this case. How the Waiver Order applies here thus
involves questions of policy best left to the FCC, the agency
that adopted the Waiver Order in the first place pursuant to its
regulatory authority in this arena.

   [13] In addition, the Waiver Order is national in scope,
affecting local exchange carriers and payphone service pro-
viders throughout the country, including many industry partic-
ipants not involved in this litigation. For the Order’s
reimbursement requirement to be applied uniformly, it is the
FCC that must construe its scope. We note that there are cur-
rently five requests for such a construction pending before the
FCC. The agency has provided some indication that it will
determine this issue in due course. See In re Implementation
of the Pay Telephone Reclassification and Compensation Pro-
visions of the Telecommunications Act of 1996, Public
Notice, New England Public Communications Council, Inc.
Filing of Letter from Supreme Judicial Court of Massachu-
setts Regarding Implementation of the Pay Telephone Com-
pensation Provisions of the Telecommunications Act of 1996,
DA 06-780, 2006 WL 850948 (Apr. 3, 2006), ¶ 1 & n.3; see
also In re Implementation of the Pay Telephone Reclassifica-
tion and Compensation Provisions of the Telecommunications
Act of 1996, Public Notice, Pleading Cycle Established for
Michigan Pay Telephone Association Petition for Declaratory
Ruling, DA 06-1190, 2006 WL 1519441 (June 2, 2006). It is
               DAVEL COMMUNICATIONS v. QWEST CORP.                    7057
precisely the purpose of the primary jurisdiction doctrine to
avoid the possibility of conflicting rulings by courts and agen-
cies concerning issues within the agency’s special compe-
tence. At least unless and until the FCC declines to determine
the scope of the Waiver Order, questions regarding that scope,
including those at the core of this case, are within the agen-
cy’s primary jurisdiction.7

  [14] We conclude that the issue of the scope of the Waiver
Order should be referred to the FCC.

                                    C.

   If the Waiver Order does entitle Davel to some relief as a
result of Qwest’s alleged failure to file public access line rates
compliant with the new services test by the specified deadline,
the pivotal question would become whether Qwest’s rates
between 1997 and 2002 were NST-compliant. Until we know
whether and, if so, to what degree the Waiver Order gives rise
to refund relief for all or part of the several year period in
which Qwest’s rates were assertedly non-NST-compliant,
however, we cannot evaluate this refund claim on its merits.
Nor, applying our understanding of Cost Management, can we
determine whether the refund claim is sufficiently fact-
dependent that any primary jurisdiction determination must
await factual development. Consequently, because we have
held that the scope of the Waiver Order is within the primary
jurisdiction of the FCC, we cannot now address whether the
issue of Qwest’s pre-2002 rates’ compliance with the new ser-
vices test is also within the agency’s primary jurisdiction, and
we do not do so.8
  7
     Whether, as Davel maintains, the FCC could decline to address the
scope of its Waiver Order, either expressly or by failing to respond to the
outstanding requests, and, if it does, whether the district court could then
proceed to do so, are questions we do not decide.
   8
     Qwest also contends that the determination of whether its pre-2002
intrastate public access line rates complied with the new services test is
7058          DAVEL COMMUNICATIONS v. QWEST CORP.
                                   D.

   [15] The district court dismissed the case pursuant to the
filed rate doctrine. Davel contends that, under the primary
jurisdiction doctrine, the appropriate disposition of this case
is a stay, not a dismissal. Whether to stay or dismiss without
prejudice a case within an administrative agency’s primary
jurisdiction is a decision within the discretion of the district
court. Reiter, 507 U.S. at 268-69. The court may stay the case
and retain jurisdiction or, “if the parties would not be unfairly
disadvantaged, . . . dismiss the case without prejudice.” Id.
The factor most often considered in determining whether a
party will be disadvantaged by dismissal without prejudice is
whether there is a risk that the statute of limitations may run
on the claims pending agency resolution of threshold issues.
Syntek, 307 F.3d at 782; Brown, 277 F.3d at 1173. Also,
where the court suspends proceedings to give preliminary def-
erence to an administrative agency but further judicial pro-
ceedings are contemplated, then jurisdiction should ordinarily
be retained via a stay of proceedings, not relinquished via a
dismissal. N. Cal. Dist. Council of Hod Carriers, Bldg. &
Constr. Laborers, AFL-CIO v. Opinski, 673 F.2d 1074, 1076
(9th Cir. 1982).

   [16] Here, because it dismissed the case on the basis of the
filed-rate doctrine, the district court did not address whether
Davel would be disadvantaged by dismissal. In particular, the
district court had no occasion to consider that Davel’s claims
are subject to a two-year statute of limitations that began to
run, at the latest, when Qwest first filed its NST-compliant

within the primary jurisdiction of the state utility commissions, with
which, pursuant to the FCC’s Order on Recons., those rates are filed. For
the same reasons we cannot address whether the issue is within the FCC’s
primary jurisdiction, we cannot address this contention. We thus do not
decide the open question whether primary jurisdiction referral to a state
agency would be proper in any event. See Cost Mgmt., 99 F.3d at 949
n.12.
            DAVEL COMMUNICATIONS v. QWEST CORP.            7059
tariffs, so Davel may well lose its claims before the FCC
resolves the threshold issues.

  [17] We therefore remand to the district court to determine
whether to stay the case or dismiss it without prejudice,
applying the pertinent factors.

                IV.   Statute of Limitations

   The district court dismissed Davel’s claims based on
Qwest’s fraud protection rates as barred by the two-year stat-
ute of limitations of 47 U.S.C. § 415(b). Davel contends this
dismissal was error because its fraud rate claims did not
accrue until Qwest filed NST-compliant fraud protection rates
with the FCC in 2003.

   The Order on Recons. required the filing of fraud protec-
tion tariffs with the FCC by January 15, 1997. See Order on
Recons. ¶ 163. Davel contends, and Qwest does not dispute,
that Qwest filed no fraud protection tariffs with the FCC until
2003. During the period between 1997 and 2003, Davel paid
Qwest for fraud protection under the rates specified in tariffs
Qwest filed with the states. The district court correctly found
that, accepting the allegations of the complaint as true, Davel
had a cause of action against Qwest as soon as Qwest missed
the federal filing deadline and Davel paid for fraud protection
services based on the non-compliant rates on file with the
state utility commissions. At that time, Davel could have
brought any claim it had under 47 U.S.C. §§ 206-207 in dis-
trict court or with the FCC.

   We reject Davel’s contention that its cause of action did not
accrue until Qwest filed NST-compliant rates in 2003,
because it had no knowledge until then that Qwest’s rates
were too high. The D.C. Circuit, affirming the FCC, rejected
such a contention in similar circumstances in Sprint Commu-
nications Co. v. FCC, 76 F.3d 1221, 1227-31 (D.C. Cir. 1996)
(rejecting application of a “discovery” rule of accrual where
7060           DAVEL COMMUNICATIONS v. QWEST CORP.
cause of action was predicated on “AT & T’s failure to file
and to charge cost-justified rates”). In that case, the plaintiff,
Sprint, argued that it had no knowledge of its claim based on
the payment of tariffed rates for telecommunications services
until the defendant, AT&T, several years later, filed cost data
indicating that the rates charged exceeded lawful levels. Id. at
1224-25. Affirming the FCC, the D.C. Circuit held that Sprint
was on inquiry notice of the claim as soon as it had knowl-
edge suggesting the rates might be improper. Id. at 1229-30.

   [18] We find the D.C. Circuit’s reasoning on this issue par-
ticularly apposite in the circumstances of this case. As soon
as Qwest failed to file fraud protection rates with the FCC, it
was in technical non-compliance with the Payphone Orders,
and Davel was on inquiry notice that it might be paying
excessive rates for fraud protection.9 Its cause of action there-
fore accrued at that time. The fact that, until Qwest filed its
new fraud protection rates in 2003, Davel was not in a posi-
tion to determine the precise amount of the overcharges, or
even whether the charges were excessive at all, does not
change this result. “Accrual does not wait until the injured
party has access to or constructive knowledge of all the facts
required to support its claim. Nor is accrual deferred until the
injured party has enough information to calculate its dam-
ages.” Sprint, 76 F.3d at 1229 (citation omitted). Rather,
“once a plaintiff has [inquiry] notice [of its claim], it bears the
responsibility of making diligent inquiries to uncover the
remaining facts needed to support the claim.” Id. at 1230.
Once Davel was aware that Qwest had missed the federal fil-
  9
   Indeed, as Davel recognizes, the Colorado Public Utilities Commission
determined in 1999, based upon a complaint filed in March of 1998, that
Qwest’s fraud protection rates filed in that state were excessive. See Colo.
Payphone Ass’n v. U.S. West Commc’ns, Inc., 1999 WL 632854 (Colo.
Pub. Util. Comm’n May 18, 1999). Thus, as in Sprint, publicly available
information allowed parties similarly situated to Davel to discover their
cause of action within a year of the new regulations coming into effect.
               DAVEL COMMUNICATIONS v. QWEST CORP.                      7061
ing deadline, it was obliged to make reasonable inquiries to
determine any possible injury it may have suffered as a result.10

   This analysis reflects a key difference between the damages
claims concerning the fraud protection services and the claims
based on the Waiver Order. On Davel’s construction of the
Waiver Order, the right to reimbursement under the Order
came into existence only upon the filing of NST-compliant
rates. On that interpretation, Davel had no right to reimburse-
ment against Qwest until Qwest filed compliant rates, alleg-
edly in 2002, and its cause of action for Qwest’s alleged
violation of the Waiver Order thus accrued thereafter, when
Qwest failed to pay the reimbursements. In contrast, there was
no reimbursement order applicable to the fraud protection ser-
vices, so any cause of action necessarily accrued when Qwest
failed to comply with the Payphone Orders and Davel was
injured as a result.

   [19] Davel’s fraud protection services claims are not, how-
ever, wholly barred. Qwest’s tariff filing obligations were
ongoing. Each time Davel paid the non-NST-compliant state-
filed tariff, it was injured anew by Qwest’s failure to file the
required federal tariff. See MCI Telecomms. Corp. v. Tele-
concepts, Inc., 71 F.3d 1086, 1101 (3d Cir. 1995) (analogiz-
ing to installment contracts and coming to a similar
conclusion with respect to 47 U.S.C. § 415(a), the statute of
limitations applicable to actions by carriers). Thus, while the
district court was correct that the claim for any amounts paid
as of May 15, 1997, expired on May 15, 1999, amounts paid
under non-compliant tariffs within two years prior to the fil-
ing of the complaint are timely.

   [20] Accordingly, we hold that the fraud protection claims
  10
     We also find it of no moment that this case is before us on a motion
to dismiss. Davel’s own allegations charge that Qwest missed the federal
filing deadline, and there is no reasonable possibility that it can prove that
it was not aware of this omission until after 2002.
7062          DAVEL COMMUNICATIONS v. QWEST CORP.
based on non-NST-compliant fraud protection rates paid
within two years of the filing of Davel’s complaint are timely.11

                           V.    Conclusion

   We REVERSE the dismissal of Davel’s fraud protection
claims with respect to fraud protection payments made pursu-
ant to non-NST-compliant rates within the two-year period
prior to the filing of the complaint and REMAND for further
proceedings consistent with this opinion. We VACATE the
dismissal without prejudice of Davel’s Waiver Order claims
and REMAND the case to the district court for a consider-
ation whether a stay or dismissal without prejudice is the
appropriate disposition pursuant to the primary jurisdiction
doctrine.




  11
     Because the parties have raised on appeal no other issues regarding
the fraud protection claims, our decision on these claims is limited to the
statute of limitations question. Qwest is free to raise other available
defenses to these claims on remand.
