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2d 208
order. Two weeks later, the court held that defendants were violating 47 U.S.C.
214(c) by proceeding without an FCC certificate, and therefore granted a
temporary injunction. The court made the injunction permanent on December
18, 1990, prohibiting defendants "from constructing a new line or extension on
any line for cable television purposes until so authorized by the FCC or until
further order of this court." Appellants' App. at 382.
3
Thus chastened, defendants obtained a ruling from the Chief of the Domestic
Facilities Division of the FCC granting them permission to construct and
operate a cable television facility in Clayton, and petitioned the district court to
lift the permanent injunction. Without explanation, the court declined to do so,
and defendants appealed.
II
4
Once defendants obtained the favorable ruling from the FCC, however, the
basis for the injunction evaporated. In its own order, the district court had
stated that the injunction would continue "until" authorization was obtained
from the FCC. Plaintiff argues that the decision by the Domestic Facilities
Division is not a final order and, therefore, continuance of the injunction is
justified. The express language of the statute, however, along with the
applicable regulations, belies this conclusion.
The Code of Federal Regulations delegates to the Chief of the Common Carrier
Bureau "all functions of the Bureau." 47 C.F.R. 0.291. The Domestic
Facilities Division is a division of the Common Carrier Bureau. Section
Any doubt that the order from the Domestic Facilities Division is final and may
be relied upon by defendants is dispelled by 214(c):
9
After
issuance of [the] certificate, and not before, the carrier may, without securing
approval other than such certificate, comply with the terms and conditions contained
in or attached to the issuance of such certificate and proceed with the construction,
extension, acquisition, operation, or discontinuance, reduction, or impairment of
service covered thereby.
10
47 U.S.C. 214(c) (emphasis added). Thus the statute clearly provides that the
carrier may proceed in compliance with the certificate once it is issued,
regardless of any appeal that might be pending. Defendants concede that they
proceed with construction at their own risk; their investment would be lost if
the FCC, or an appellate court reviewing the agency action, were later to
reverse the granting of the certificate. But this risk is theirs to bear if they so
choose.
11
Issuance of the order from the Domestic Facilities Division entitled defendants
to proceed with construction of a cable television facility in Clayton, and we are
unable to discern any principled basis upon which the permanent injunction
could be left in place. We therefore conclude that the district court's failure to
dissolve the permanent injunction was arbitrary and capricious, and thus an
abuse of discretion. The decision of the district court is REVERSED, and the
cause REMANDED with instructions to DISSOLVE the injunction barring
defendants from constructing and operating a cable television franchise in
Clayton, Oklahoma.
Plaintiff, as the current provider of cable services in the affected area, qualifies
as a "party in interest."
Defendants' argument that the district court should have refrained from acting
pursuant to the primary jurisdiction doctrine misses the mark. Had the district