concurring in part and dissenting in part.
I concur in that part of the judgment and opinion of the court that holds that the previous judgment in Western Union Corp. v. Parrish, No. 88 Ch. 9963 (Ill.Cir.Ct.), does not bar ATS from defending on the merits against the City’s cross-claim in this suit. I respectfully dissent, however, from the remainder of the court’s disposition of this case. In my view, we ought to *1401certify to the Illinois Supreme Court the issues of whether ATS is a telephone company and of whether Chicago’s power to regulate ATS’ activity is circumscribed by the Telephone and Telegraph Act.
No one can doubt that we have the power to decide this case. Diversity jurisdiction, both as a constitutional and statutory matter, grants us the authority. The question is whether we ought to use that power at this time despite the availability of other mechanisms that can be invoked easily, and that would permit the Illinois Supreme Court to decide these issues in a comprehensive and coherent manner.
At the outset, we should note the magnitude and importance of the task that confronts the Illinois Supreme Court in Arlington Heights. The court must attempt to apply a regulatory statute of relatively ancient vintage to one of the most technologically progressive and innovative industries in the United States. That task will involve no doubt far more than the rote application of settled legal principles to a set of facts. Rather, as the majority opinion amply demonstrates, it involves the subtle process of filling the interstices of the statutory scheme to deal with technological developments never envisioned by those who set in place the regulatory scheme. Such a policy-oriented task requires a familiarity with — and an appreciation of — the entire state regulatory scheme. The Illinois Supreme Court, not a panel of this court, ought to determine whether Illinois public policy, as embodied in the pronouncements of its legislature, permits the state’s municipalities to regard modern fiber optic technology as a revenue source and, if so, under what circumstances. Perhaps the justices will agree with my brothers that such a course would amount to a “monopoly toll” that would transform Illinois municipalities to the level of “so many little medieval German principalities.” Majority Op. at 1400. However, that assessment should come, if at all possible, from the pen of a justice of the Illinois Supreme Court, not that of a judge of this court.
As the majority notes, there are no doubt times when, despite considerations that make state court adjudication the preferable course, it would be necessary for the federal court to decide the state law issues in this case. Here, however, the state alternative is readily available. The principal issue is already before the State Supreme Court. The other issue — whether ATS is a telephone company — is hardly so fact-specific as to constitute an imposition on the time of the justices of that court. The relevant facts are that ATS has general articles of incorporation and registered with the secretary of state as a foreign corporation intending to do “telecommunications” business. The district court and the City are of the view that a company must have a certificate of public convenience and necessity in order to qualify as a telephone company. A pure matter of statutory construction is presented. Furthermore, the applicability of the Telephone Act to modern participants in the telecommunications industry is hardly an issue unworthy of the state court’s time. Indeed, it is an important aspect of the state’s regulatory scheme. Certification of both these issues will afford the Illinois Supreme Court the opportunity to clarify comprehensively the regulatory scheme without the danger of conflicting or differently nuanced pronouncements.
The futility of the court’s forging on to decision despite the pending proceedings in the Illinois Supreme Court is evident on the face of its opinion. It is selective in those state law issues it addresses; it pointedly declines to deal with the applicability of the ten-day privilege of the Telephone Act to cities like Chicago. Majority Op. at 1398-99. Indeed it admits, quite frankly, that its views on the content of state law are tentative because of the pendency of Arlington Heights in the Illinois Supreme Court. Majority Op. at 1400. Under these circumstances, one must speculate as to the purpose of this gratuitous pronouncement. It is an unnecessary expenditure of the judicial resources of this court and deprives the Illinois Supreme Court of the opportunity to deal with this important problem comprehensively. A gratuitous effort to help *1402another court with its own law is hardly sufficient countervailing justification. Indeed, as the majority notes, there is sufficient secondary literature available to the justices should they care to consult it.
The best one might be able to say about this effort to counsel the Illinois Supreme Court is that it “could do no harm.” Majority Op. at 1395. However, even this justification is overly charitable. There is a significant harm, albeit an intangible one, when a federal appellate court ignores without good and sufficient reason an available mechanism that allows a state to declare the content of its own law. Indeed, preliminary injunction analysis requires that we include in our weighing of the “balance of harms” the “public good.” That public good requires that we do something other than gratuitously express a preference for a free market solution to a complex municipal regulatory problem. It requires that we give respectful heed to the prerogatives of the state courts to determine definitively the content of state law.
These views, my brothers suggest, represent an unwarranted timidity. Majority Op. at 1395. There is a great difference between timidity and respectfulness — not only for the content of state law but also for the prerogative of state judicial officers to determine the content of state law. Illinois has invited us by statute to refer certified questions to its Supreme Court, not to file an amicus brief. If respecting the limits on that invitation is timidity, let us make the most of it.1
. My brothers contend that we ought not be "shy” about stating the content of state law. Majority Op. at 1395. I respectfully submit that there is another shyness manifest in this case — a shyness about certifying issues to the Illinois Supreme Court. Indeed, when one reviews this court’s chronic underutilization of this statute, it is difficult not to conclude that, as a court, we suffer from an institutional shyness in this regard. The reasons for this reluctance appear enshrouded in a murky conventional wisdom, largely of an anecdotal nature, that is hardly a sound basis for principled decision-making. It is time that, as a court, we undertook some “assertiveness training” in this regard. We do the justices of the Supreme Court of Illinois a great injustice if we assume that they do not want to take responsibility for the elucidation of Illinois law.