FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GCB COMMUNICATIONS, INC., an
Arizona corporation, DBA Pacific
Communications; LAKE COUNTRY
COMMUNICATIONS, INC., a Minnesota
corporation,
Plaintiffs-Appellees,
No. 09-17646
v.
U.S. SOUTH COMMUNICATIONS, INC., a D.C. No.
2:07-cv-02054-
Georgia corporation, SRB
Defendant-Appellant,
and
UNIDENTIFIED COMPANIES I THROUGH
X,
Defendant.
GCB COMMUNICATIONS, INC., an
Arizona corporation, DBA Pacific
Communications; LAKE COUNTRY
COMMUNICATIONS, INC., a Minnesota
corporation,
Plaintiffs-Appellees, No. 10-16086
v. D.C. No.
U.S. SOUTH COMMUNICATIONS, INC., a 2:07-cv-02054-
SRB
Georgia corporation,
Defendant-Appellant, OPINION
and
UNIDENTIFIED COMPANIES I THROUGH
X,
Defendant.
5579
5580 GCB COMMS v. U.S. SOUTH COMMS
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
March 15, 2011—San Francisco, California
Filed April 29, 2011
Before: J. Clifford Wallace, Ferdinand F. Fernandez, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Fernandez
5582 GCB COMMS v. U.S. SOUTH COMMS
COUNSEL
Glenn B. Manishin, Duane Morris LLP, Washington, D.C.,
for the appellant.
Glenn B. Hotchkiss, Cheifetz Iannitelli Marcolini, P.C., Phoe-
nix, Arizona, for the appellees.
Albert H. Kramer, Dickstein Shapiro LLP, Washington, D.C.,
for the amicus, American Public Communications Council,
Inc.
OPINION
FERNANDEZ, Circuit Judge:
U.S. South Communications, Inc. (U.S. South) appeals
from the judgment entered against it and in favor of GCB
GCB COMMS v. U.S. SOUTH COMMS 5583
Communications, Inc. and Lake Country Communications,
Inc. (collectively GCB) after a bench trial. At issue is whether
U.S. South was required to pay GCB for completed coinless
payphone calls — dial-around calls — if U.S. South did not
receive coding digits that would identify the calls as GCB
payphone calls. We reverse and remand for further proceed-
ings.
BACKGROUND
GCB is a payphone service provider (PSP), which owns
public payphones. U.S. South is an issuer of prepaid calling
cards. The disputed calls in this case were placed on GCB’s
payphones using U.S. South’s calling cards.
When a coinless call is made on a payphone, it is initially
received by the local exchange carrier (LEC) serving that geo-
graphic region. The LEC then passes the call to an interex-
change carrier (IXC), and the IXC then routes the call to the
carrier that completes the call (the “completing carrier,”
which in this case is U.S. South, a switch-based reseller
(SBR)). For the calls at issue in this case that were completed
by U.S. South, Level Three Communications (L3) was U.S.
South’s IXC. Federal Communications Commission (FCC)
regulations require an SBR to compensate PSPs for completed
calls that were placed on their payphones.1 Dial-around calls
are coinless calls placed at a payphone where the caller does
not utilize the PSP’s chosen long distance provider, and for
which the PSPs receive no compensation from the caller. U.S.
South is the completing carrier when individuals place calls
using its prepaid calling cards. A call is deemed completed
when the called party answers the telephone. As calls are
routed through the telephone communications network, the
various carriers in the call path exchange information so that
1
See, e.g., In re Pay Telephone Reclassification and Compensation Pro-
visions of the Telecommunications Act of 1996 (“2003 Payphone Order”)
Report and Order, 18 FCC Rcd. 19975, 19976, ¶ 1 (2003).
5584 GCB COMMS v. U.S. SOUTH COMMS
each carrier knows what to bill for its contribution to the com-
pleted call.
U.S. South identifies which payphones were used to place
calls with its calling cards by utilizing technology called
“Flex-ANI.” Every payphone is assigned an Automatic Num-
ber Identification (ANI), which is essentially its phone num-
ber. Flex-ANI is software that enables the LEC to determine
whether a particular call was originated from a payphone by
matching the ANI of the phone from which the call is made
against a database of payphone ANIs. If the ANI is identified
as a payphone ANI, the LEC, using Flex-ANI, will generate
a two digit code of either 27, 29, or 70 and attach that code
to the payphone’s ANI at the LEC’s switch. The codes are not
actually attached to the ANI at the payphone itself. Flex-ANI
has become the standard method for determining whether a
call originated from a payphone.
In order for the system to function properly, the originating
LEC and each subsequent carrier must have Flex-ANI capa-
bility. IXCs, like L3, have an obligation to provide all of the
call data they receive at their switches, without manipulation,
to SBRs, like U.S. South, including the Flex-ANI coding dig-
its if received. If L3 does not receive Flex-ANI digits when
the call is passed to it, neither will U.S. South.
When U.S. South completes a call, the data from that call
is captured at its switch. If U.S. South receives a call with
Flex-ANI coding digits identifying the call as having been
placed on a payphone, it will add that call to a database used
to determine dial-around compensation owed to individual
PSPs, like GCB. If a call does not include the identifying dig-
its, it will be discarded as not compensable. On a quarterly
basis, U.S. South forwards its compensable call data to
Atlantax Systems, Inc., which it hires to process and pay the
dial-around compensation it owes to each individual PSP.
GCB COMMS v. U.S. SOUTH COMMS 5585
At root, GCB’s argument is that when U.S. South com-
pleted calls made from GCB’s payphones, U.S. South owed
it dial-around compensation for the calls,2 even if the proper
coding was absent or incorrect at the time U.S. South received
them. Both parties make factual arguments disclaiming fault
for the failure of Flex-ANI digits to appear with the disputed
calls at the time U.S. South received them. Beyond that, GCB
contends that the FCC regulations require completed calls to
be compensated, without regard to whether the completing
carrier received Flex-ANI coding, or to why it was not
received. U.S. South argues that if it did not receive Flex-ANI
digits, the regulations require compensation only if it can be
found that the completing carrier or IXC is at fault.
The district court did not resolve that factual issue after the
bench trial. Instead, the district court determined the result
based on a legal conclusion: it interpreted the FCC regulations
on dial-around compensation to require that once PSPs “set
up (or provision) their payphone lines with Flex-ANI capabil-
ity” they are owed compensation for completed calls, even if
the Flex-ANI coding is not sent to or received by the complet-
ing carrier. Moreover, the district court held that because “the
relevant regulations placed the burden for accurately tracking
calls on the completing carrier (U.S. South) and not the PSP
(plaintiffs),” U.S. South owes GCB dial-around compensation
for the disputed calls “regardless of whether the proper Flex-
ANI digits were transmitted.” On that view of the law, the
only factual finding necessary to resolve the case was whether
GCB had properly “set up” its payphones with Flex-ANI
capability. The court found that it had. U.S. South appealed.
JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C.
§ 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
2
The parties agree that U.S. South has compensated GCB for all calls
for which U.S. South received the payphone specific Flex-ANI coding
digits.
5586 GCB COMMS v. U.S. SOUTH COMMS
In this statutory and regulatory area of the law, we review
a district court’s legal interpretations, which are constrained
by Chevron,3 de novo. See Levine v. Vilsack, 587 F.3d 986,
991 (9th Cir. 2009). A district court’s conclusions of law fol-
lowing a bench trial are also reviewed de novo. See JustMed,
Inc. v. Byce, 600 F.3d 1118, 1125 (9th Cir. 2010). We review
a district court’s denial of a request to refer a case to an
agency under the primary jurisdiction doctrine for abuse of
discretion. See Syntek Semiconductor Co., Ltd. v. Microchip
Tech. Inc., 307 F.3d 775, 781 (9th Cir. 2002). But if the dis-
trict court has committed an error of law, that would consti-
tute an abuse of discretion. See Bateman v. Am. Multi-
Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). We review
the factual findings underlying a district court’s decisions for
clear error. See JustMed, 600 F.3d at 1125; United States v.
Bassignani, 575 F.3d 879, 883 (9th Cir. 2009).
We review evidentiary rulings for abuse of discretion, but
will not reverse those unless it is more probable than not that
an error, if any, tainted the outcome. See Valdivia v. Schwar-
zenegger, 599 F.3d 984, 993-94 (9th Cir. 2010). Moreover,
we review a district court’s case management decisions for
abuse of discretion. See O’Neill v. United States, 50 F.3d 677,
687-88 (9th Cir. 1995).
DISCUSSION
U.S. South raises a number of issues besides the central
issue of who bears the expense when the completing carrier
does not receive the Flex-ANI coding numbers. Three of
those are at the threshold: does GCB have a cognizable claim;
is even considering the question here a violation of principles
of deference to administrative agencies; and should the dis-
trict court have applied the principle of primary jurisdiction?
Others can be considered after we dispose of the central issue:
3
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104
S. Ct. 2778, 81 L. Ed. 2d 694 (1984).
GCB COMMS v. U.S. SOUTH COMMS 5587
did the district court err when it made evidentiary rulings; did
it err when it made case management decisions; did it use the
wrong prejudgment interest rate; and did it improperly deter-
mine the fee award?
I. Threshold Issues
This group of issues revolves around U.S. South’s wish that
the district court had not heard the case at all. Its laments take
three forms.
U.S. South first states that the district court had no power
to grant relief, by which it appears to mean that GCB did not
state a claim because no right of action is provided for by law.
That is a most problematic position in any event,4 but we need
not address it at this time because the argument was not pre-
sented to the district court.5 In short, the alleged defect is not
one of jurisdiction6 and U.S. South has waived it.7 We will not
consider the issue.
Next, U.S. South argues that the district court, somehow,
violated the doctrine that requires deference to an interpreta-
tion of statutes or regulations by an administrative agency,
4
See 47 U.S.C. § 201(b) (unreasonable actions by a carrier are unlaw-
ful); id. § 206 (carrier liable to persons injured by unlawful actions of the
carrier); id. § 207 (a damaged person may sue in district court); 2003 Pay-
phone Order, 18 FCC Rcd. 19975, 19990, ¶ 32 (a failure to pay pursuant
to the FCC’s payphone rules is “an unjust and unreasonable practice.”);
Global Crossing Telecomms., Inc. v. Metrophones Telecomms., 550 U.S.
45, 47-48, 127 S. Ct. 1513, 1516, 167 L. Ed. 2d 422 (2007) (FCC order
“is a reasonable interpretation of the statute.”).
5
In fact, U.S. South admits that it did not file a motion to dismiss pursu-
ant to Fed. R. Civ. P. 12(b)(6) because of its own tactical considerations,
that is, it thought it could expedite matters if it did not.
6
See Burks v. Lasker, 441 U.S. 471, 476 n.5, 99 S. Ct. 1831, 1836 n.5,
60 L. Ed. 2d 404 (1979); Ball v. Rodgers, 492 F.3d 1094, 1102 n.12 (9th
Cir. 2007).
7
See WildWest Inst. v. Bull, 547 F.3d 1162, 1172 (9th Cir. 2008).
5588 GCB COMMS v. U.S. SOUTH COMMS
here the FCC. See Nat’l Assoc. of Home Builders v. Defenders
of Wildlife, 551 U.S. 644, 672, 127 S. Ct. 2518, 2537-38, 168
L. Ed. 2d 467 (2007); Chevron, 467 U.S. at 842-45, 104 S. Ct.
at 2781-83; River Runners for Wilderness v. Martin, 593 F.3d
1064, 1073 (9th Cir. 2010). That principle is clear enough.
However, the district court did not ignore any interpretation
by the FCC; rather, it engaged in the common judicial task of
construing the language of an order, which the FCC has not
construed in any way antithetical to the district court’s read-
ing. Indeed, the FCC has been silent on that subject. Thus, the
district court did not run afoul of Chevron. See Alaska v. Fed.
Subsistence Bd., 544 F.3d 1089, 1095 (9th Cir. 2008); United
States v. Trident Seafoods Corp., 60 F.3d 556, 559 (9th Cir.
1995).
Well, then, says U.S. South, if the FCC has not construed
its regulation, it should do so, and the district court abused its
discretion when it failed to refer the issue to the FCC pursuant
to the doctrine of primary jurisdiction. But, of course, the pri-
mary jurisdiction doctrine is not jurisdictional at all in the
usual sense; “it is a prudential doctrine under which courts
may, under appropriate circumstances, determine that the ini-
tial decisionmaking responsibility should be performed by the
relevant agency rather than the courts.” Syntek, 307 F.3d at
780. It is useful, and can be used, in instances where the fed-
eral courts do have jurisdiction over an issue, but decide that
a claim “requires resolution of an issue of first impression, or
of a particularly complicated issue that Congress has commit-
ted to a regulatory agency.” Brown v. MCI WorldCom Net-
work Servs., Inc., 277 F.3d 1166, 1172 (9th Cir. 2002).
Here, as a general matter, we know that Congress was espe-
cially concerned about payment of full and fair compensation
to payphone operators,8 and that the FCC has issued a number
of orders designed to assure that the congressional intent is
8
See 47 U.S.C. § 276(b)(1)(A).
GCB COMMS v. U.S. SOUTH COMMS 5589
carried out.9 Moreover, the FCC has declared that the failure
to pay is unjust and unreasonable. 2003 Payphone Order, 18
FCC Rcd. 19975, 19990, ¶ 32. Thus, the basic compensation
concept, with all of its complexity, is not before us. What is
before us is the relatively easier task of construing the lan-
guage of the FCC orders. While, as we will explain, we do not
agree with the district court’s construction of the order in
question, based upon what that court had before it when it was
asked to refer the issue to the FCC, we are unable to hold that
it abused its discretion. See United States v. W. Serum Co.,
Inc., 666 F.2d 335, 338 (9th Cir. 1982); see also Cnty. of
Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1251-52 (9th
Cir. 2009). Especially is that true where, as here, U.S. South
waited until shortly before trial to raise the issue at all. Cf.
CSX Transp. Co. v. Novolog Bucks Cnty., 502 F.3d 247, 253
(3d Cir. 2007) (where primary jurisdiction issue not raised
until after trial, it was waived); United States v. Campbell, 42
F.3d 1199, 1202 (9th Cir. 1994) (same).
Having disposed of those preliminary issues, we can now
address the central issue in this case.
II. Payphone Operator Compensation
[1] As already noted, Congress wanted to ensure that PSPs
receive compensation when calls are completed using their
payphones; it directed the FCC to establish a plan to accom-
plish that. See 47 U.S.C. § 276(b)(1)(A). To effectuate that
directive, the FCC promulgated regulations which require
completing carriers to compensate PSPs on a per-call basis for
calls made on their payphones. See 47 C.F.R. § 64.1300. The
9
See, e.g., In re Request to Update Default Compensation Rate for Dial-
Around Calls from Payphones, Report and Order, 19 FCC Rcd. 15636,
15661, ¶ 79 (2004); 2003 Payphone Order, 18 FCC Rcd. 19975, 19990,
¶ 32; In re Implementation of the Pay Telephone Reclassification and
Compensation Provisions in the Telecommunications Act of 1996, Second
Report and Order, 13 FCC Rcd. 1778, 1805-06, ¶ 59-60 (1997).
5590 GCB COMMS v. U.S. SOUTH COMMS
regulations also require completing carriers to “establish a call
tracking system that accurately tracks coinless” payphone
calls.10 47 C.F.R. § 64.1310(a)(1). Completing carriers must
undergo audits of their tracking systems to ensure that PSPs
are being properly compensated. 47 C.F.R. § 64.1320(a). To
assist IXCs and completing carriers in tracking payphone
calls, the FCC required LECs to implement Flex-ANI tech-
nology at their switches.11
The dispute in this case is over dial-around calls placed at
GCB’s payphones, but for which the Flex-ANI digits were not
received by U.S. South. While the parties argue over who
erred regarding those digits, the district court saw no need to
resolve that question because, in its opinion, it did not matter
as long as GCB had made a provision for transmitting the
Flex-ANI number, even if the number was not transmitted.
We do not agree that the FCC’s requirements can be read in
that way.
[2] The FCC imposed a requirement that:
LECs transmit payphone-specific coding digits to
PSPs, and that PSPs transmit those digits from their
payphones to IXCs. The provision of payphone-
specific coding digits is a prerequisite to payphone
per call compensation payments by IXCs to PSPs for
subscriber 800 and access code calls.
1998 Payphone Order, 13 FCC Rcd. 4998, 5006, ¶ 13 (foot-
note reference omitted); see also In re Implementation of the
10
Completing carriers need not use Flex-ANI technology; they may use
the technology of their choice to meet their tracking obligations. See 2003
Payphone Order, 18 FCC Rcd. 19975, 19994, ¶ 39.
11
In re Implementation of the Pay Telephone Reclassification and Com-
pensation Provisions of the Telecommunications Act of 1996 (“1998 Pay-
phone Order”), Memorandum Opinion and Order, 13 FCC Rcd. 4998,
5050, ¶ 99 (1998); see also id. at 5006, ¶ 13.
GCB COMMS v. U.S. SOUTH COMMS 5591
Pay Telephone Reclassification and Compensation Provisions
of the Telecommunications Act of 1996, Order on Reconsider-
ation, 11 FCC Rcd. 21233, 21265-66, ¶ 64 (1996) (stating
that: “payphones will be required to transmit specific pay-
phone coding digits” and “[e]ach payphone must transmit
coding digits.”). In discussing a waiver, which was being pro-
vided by the order, the FCC went on to explain: “This limited
waiver applies to the requirement that LECs provide
payphone-specific coding digits to PSPs, and that PSPs pro-
vide coding digits from their payphones before they can
receive per-call compensation from IXCs for subscriber 800
and access code calls.” 1998 Payphone Order, 13 FCC Rcd.
4998, 5007, ¶ 14.
[3] The district court essentially interpreted these provi-
sions to mean that PSPs need only provide for transmission
of the Flex-ANI digits, even if the digits were never transmit-
ted into the system. As we see it, that is not a proper reading
of the plain language12 of the order; when one is obligated to
transmit something or provide something to another, it is con-
trary to ordinary usage to say that one need only make provi-
sion to do so, even if one does not provide or transmit at all.
A natural reading13 of the words in question leads to a conclu-
sion that the Flex-ANI digits must, indeed, be transmitted in
the first place. As dictionary definitions show,14 that accords
with the usual active meaning of the words “transmit”15 and
12
When the text of a statute or regulation is read, we look to its plain
meaning. See United States v. Bucher, 375 F.3d 929, 932 (9th Cir. 2004)
(regulations); Eisinger v. FLRA, 218 F.3d 1097, 1102 (9th Cir. 2000) (stat-
utes).
13
See Carcieri v. Salazar, ___ U.S. ___, ___, 129 S. Ct. 1058, 1064-65,
___ L. Ed. 2d ___ (2009); United States v. Sun-Diamond Growers of Cal.,
526 U.S. 398, 406, 119 S. Ct. 1402, 1407, 143 L. Ed. 2d 576 (1999).
14
See Gollehon v. Mahoney, 626 F.3d 1019, 1023 (9th Cir. 2010).
15
See, e.g., Webster’s Third New International Dictionary 2429 (1986)
(transmit means “to cause to go or be conveyed to another person or
place”; The Oxford English Dictionary 414 (2d ed. 1989) (transmit means
“[t]o cause (a thing) to pass, go, or be conveyed to another person, place,
or thing; to send across an intervening space; to convey, transfer.”).
5592 GCB COMMS v. U.S. SOUTH COMMS
“provide.”16 That reading also makes sense because the whole
purpose of the Flex-ANI system was to implement a practical
way for completing carriers to determine that a call was from
a PSP. That, in the long run, facilitates the prompt payment
of amounts owed to all PSPs.17
We are mindful of the fact that in the way the industry
developed, the Flex-ANI codes are not directly transmitted by
the payphones themselves — those phones are not set up to
do so. Thus, rather than an LEC transmitting the code digits
to the PSP, which then transmits them from the payphones to
the IXCs, the PSP will purchase the appropriate lines from the
LEC. When a call comes from the payphone, the LEC will
attach the digits to that call and then forward it into the sys-
tem. As we see it, that makes no real difference: whether an
LEC transmits the Flex-ANI digits to the payphone, which
then transmits them — necessarily back through the LEC —
into the system, or whether that circular route is avoided and
the LEC adds the Flex-ANI digits when the call comes to it
from the payphone, the result is necessarily the same. By the
time the call leaves the LEC and enters the system, the Flex-
ANI digits will be attached — or should be. And, for good or
ill, the FCC has made it clear that it is the duty of the PSP —
vis-à-vis the completing carrier — to make sure that happens.
[4] We have no reason to believe that the FCC did not
understand the industry and its practices when it adopted the
1998 Payphone Order, but it, nevertheless, made it quite clear
that the ultimate transmission obligation is upon the PSP,
rather than upon the completing carrier. That cannot be dis-
16
See, e.g., Webster’s Third New International Dictionary 1827 (1986)
(provide means to equip, to afford, to yield, and synonyms are supply and
furnish); The Oxford English Dictionary 713 (2d ed. 1989) (provide
means to “[t]o supply or furnish for use; to yield, afford.”).
17
We recognize that “provide” can be used in the sense of prepare, as
in “I have provided for my retirement.” Here, however, it is coupled with
to transmit, which underscores a “provide to” reading.
GCB COMMS v. U.S. SOUTH COMMS 5593
charged by making a provision to transmit; transmission itself
is required.18 Nevertheless, while a PSP is responsible for
transmission of the proper information in the first place, its
obligation ends there. Others have the duty of tracking and
capturing that information, one way or another,19 once it is
sent into the system. See 47 C.F.R. § 64.1310(a)(1).
[5] Because the district court did not deem it relevant, it
did not make findings about whether the Flex-ANI codes for
the calls in question were sent into the system by GCB and
its LEC. That question must now be decided. Therefore, we
will vacate the district court’s judgment and remand for fur-
ther proceedings. See Zivkovic v. S. Cal. Edison Co., 302 F.3d
1080, 1091 (9th Cir. 2002).
III. Other Issues
[6] U.S. South claims that certain exhibits of telephone
data admitted by the district court were hearsay. However,
U.S. South did not make that objection about those exhibits
at trial, so the argument is waived. See United States v.
Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990); United
States. v. Wilson, 690 F.2d 1267, 1273-74 (9th Cir. 1982).
The argument U.S. South did make was that the information
in question was not disclosed to it during discovery. However,
the record belies that claim. While it might not have been dis-
closed in what U.S. South would take to be an ideal form, it
was produced and the district court did not abuse its discretion
when it admitted the evidence.
18
The FCC has also made it clear that “for payphones to be eligible for
compensation ‘payphones will be required to transmit specific payphone
coding digits.’ ” 1998 Compensation Order, 13 FCC Rcd. 4998, 5006-07,
¶ 13.
19
See, e.g., 2003 Payphone Order, 18 FCC Rcd. 19975, 19994, ¶ 39
(SBR may use “technology of its choice to track coinless payphone calls
. . . .”).
5594 GCB COMMS v. U.S. SOUTH COMMS
[7] U.S. South also complains about the admission of bills
received by GCB from its LECs. U.S. South claims that the
documents amounted to hearsay. Fed. R. Evid. 801(c). GCB
replies that the bills were not admitted for the truth of the mat-
ter asserted, because they were admitted only to show that
GCB owned the ANIs in question. But that, itself, is a hearsay
assertion. See United States v. Jefferson, 925 F.2d 1242, 1252
(10th Cir. 1990); NLRB v. First Termite Control Co., Inc.,
646 F.2d 424, 426 (9th Cir. 1981). In any event, because there
was much other evidence, which made it clear that GCB did
have payphone lines for its payphones, any error was harm-
less. See Valdivia, 599 F.3d at 993.
[8] U.S. South also complains about the district court’s
refusal to enforce a putative settlement, but, as the district
court pointed out, largely because of U.S. South’s refusal to
agree to part of the settlement terms, it was not enforceable.
We perceive no abuse of discretion. See Maynard v. City of
San Jose, 37 F.3d 1396, 1401 (9th Cir. 1994); Callie v. Near,
829 F.2d 888, 890 (9th Cir. 1987). To the extent that U.S.
South argues that it had agreed to GCB’s monetary demand
and, therefore, the district court lost jurisdiction, the record
belies its assertion. This case is quite different from one
where a matter has become moot because an opposing party
has agreed to everything the other party has demanded. See,
e.g., Spencer-Lugo v. INS, 548 F.2d 870, 870 (9th Cir. 1977)
(per curiam) (where INS agreed to exactly what petitioners
wanted, no case or controversy remained); see also Samsung
Elec. Co, Ltd. v. Rambus, Inc., 523 F.3d 1374, 1379 (Fed. Cir.
2008) (where opposing party agreed to pay full amount of
other party’s attorney’s fees, the attorney’s fees issue became
moot); Rand v. Monsanto Co., 926 F.2d 596, 597-98 (7th Cir.
1991) (when defendant agreed to pay the full amount of plain-
tiff’s demand, no justiciable dispute remained). Here U.S.
South never agreed to pay the full amount that GCB wanted.
Rather, GCB said it would settle for less money than it
claimed it was due if it also received an agreement by U.S.
South to enhance its tracking system by doing a different
GCB COMMS v. U.S. SOUTH COMMS 5595
method of testing. U.S. South then sent a proposed agreement
for the lower sum plus some tracking improvements, but GCB
wanted a different configuration of tracking improvements.
The settlement discussions ultimately fell apart. The district
court neither could have nor should have forced GCB to
accept the lesser sum, without the tracking improvements.
Certainly the district court did not lose jurisdiction over the
case.
[9] Nor do we perceive any abuse of discretion in the dis-
trict court’s declining to allow post-trial briefing regarding
U.S. South’s belated primary jurisdiction arguments. Nor do
we perceive any abuse of discretion in the district court’s
refusal to extend discovery deadlines. See O’Neill, 50 F.3d at
687-88; Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 607, 610-11 (9th Cir. 1992).
Finally, U.S. South complains about the interest rate used
by the district court and about the amount of the attorney’s
fees award against it. Because we have set aside the judgment,
both the award of interest and the award of fees fall with it.
We will not guess at the ultimate outcome; we decline to issue
an advisory opinion on those issues.
CONCLUSION
In this matter, GCB won battles at the district court and
U.S. South has won a battle here. Each has hoped for a crush-
ing blow to end this agon. Alas, that will not come today, and,
we suppose, their cangling will continue for now. That is to
say, we reject GCB’s contention that all it and its LEC need
to do is make provision for sending a Flex-ANI code with
dial-around calls. GCB, through its LEC, must assure that the
Flex-ANI is transmitted into the system; their duty ends there.
The problem may then be U.S. South’s, but we leave the
question of whether it must then pay compensation to GCB
for another day.
5596 GCB COMMS v. U.S. SOUTH COMMS
REVERSED and REMANDED for further proceedings.20
The parties shall bear their own costs on appeal.
20
To avoid any misunderstanding, we hasten to add that nothing we
have said here is intended to preclude the district court from taking further
evidence on any other issue in the case. Nor do we intend to preclude the
district court from revisiting and reconsidering the question of whether the
primary jurisdiction doctrine should be applied to this case, especially in
view of the fact that there has been some difficulty in determining the
proper construction of the FCC’s orders. See Brown, 277 F.3d at 1173.