The opinion
STARR, Circuit Judge,
dissenting:
It has rightly been said that federal courts are not “self-directed boards of legal inquiry and research.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.1983). Then-Judge Scalia’s wise caveat about the proper role of the Third Branch is entirely appropriate here, for the question resolved by my colleagues has, in my view, been rendered moot by virtue of the supervening action of the Federal Communications Commission providing the very relief to AT & T which it had sought under the terms of the MFJ. Under settled principles of law, this undisputed fact has the inexorable legal consequence of resolving the dispute which gave rise to AT & T’s repairing to Judge Greene’s courtroom in the first instance. I therefore respectfully dissent.
I
Before entering the labyrinthine maze of switches, access charges and the like, it behooves us to reflect on one fundamental precept with which the court, I believe, agrees, since it fails directly to call it into question: It cannot reasonably be gainsaid that action by a regulatory agency moots an appeal when the agency grants the same relief sought through judicial action. It matters not that the issues before the trial court and the regulatory agency are not precisely the same or that court and agency reach their (identical) results through interpretation of different bodies of law (or of consent decrees). After all, the core value informing mootness doctrine is that a dispute, once live, has, for whatever reason, disappeared. The cold, hard fact is that AT & T has now been given administratively the relief it had sought judicially. That terminates the controversy and brings to an end the exercise of judicial power.
A couple of cases serve to make this rather straightforward point. For example, in Iowa Power & Light Co. v. Burlington Northern, Inc., 647 F.2d 796 (8th Cir. 1981), cert. denied, 455 U.S. 907 , 102 S.Ct. 1253 , 71 L.Ed.2d 445 (1982), the court dismissed as moot an appeal of a contract enforcement action solely because the Interstate Commerce Commission had published a decision holding that the rate agreed to by the parties was just and reasonable within the meaning of applicable statutory provisions. Accordingly, the appeals court dismissed the action as moot and vacated the District Court's judgment. Detroit Fire Fighters Ass’n v. Dixon, 572 F.2d 557 (6th Cir.1978) is also illustrative. There, certain plaintiffs alleged that Detroit’s fire department had engaged in racially discriminatory conduct. The District Court agreed and entered an injunction. While the fire department’s appeal was pending, an arbitrator concluded that the practices which the trial court had condemned as discriminatory were also violative of a governing collective bargaining agreement. State court orders approving the arbitrator’s award and finding an unlawful labor practice therefore mooted the federal case on appeal. The Sixth Circuit ordered the District Court’s injunction (which had prospective effect beyond the life of the collective bargaining agreement) dissolved, notwithstanding plaintiff’s arguments that the District Court’s injunction afforded it greater relief than the State Court’s orders. 1
*449 Now, back to the case at hand. Here, the FCC has concluded that its “present rules should be interpreted to require customers of Centrex-ETS service to pay FGA access charges for the termination of off-net calls, rather than local exchange rates and the special access surcharge.” Bell Atlantic Petition, 2 F.C.C. Rcd. 7458, 7460 (1987) (emphasis added). 2 In arriving at that conclusion, the FCC reasoned as follows:
[T]he Centrex-ETS service ... should be treated like CCSA service for purposes of the access charge rules. It is clear that the BOCs are offering Centrex-ETS in direct competition with CCSA services and that the two services are very similar in terms of the functions they perform. Thus according different access charge treatment to the two services would raise serious competitive concerns.
Id. Through interpretation of its own regulations, therefore, the FCC concluded that local access charges must be the same regardless of whether a CCSA switch supplied by AT & T or a Centrex-ETN switch supplied by a BOC was employed.
With respect to local access charges, the FCC’s interpretation worked the very result that AT & T sought from the District Court. Under the FCC’s order, the BOCs came under the obligation to charge the same rate for local access, regardless of whether GSA purchased its switch from AT & T or a BOC. This relief differs not one whit from the District Court’s order requiring US West to “provide exchange access ... for the Federal Telecommunications System (FTS) network and other private networks at the same rates, regardless of which carrier a customer selects to provide switching functions.” J.A. at 27.
The District Court’s order also requires “other local exchange facilities” to be priced identically. This, I assume, refers to the Dial 8 trunk lines, which my colleagues feature extensively and which I discuss below. To the extent that it is intended to govern other, unspecified situations, the order sweeps in matters that were not squarely presented to the District Court, and thus were unripe for judicial resolution. Indeed, the District Court has not heretofore been unmindful of these very concerns. As Judge Greene has wisely observed, the trial court is not to be in the business of issuing advisory opinions on the interpretations of various consent decree provisions:
In the absence of an actual controversy and without the benefit of the Department [of Justicej’s position on many of these issues, the Court is unwilling to render an advisory opinion on these hypothetical and tangential matters.
United States v. Western Elec. Co., C.A. 82-0192, slip. op. at 7-8 (D.D.C. June 28, 1985), quoted in Memorandum in Support of Motion for Clarification of Bell Atlantic’s Obligations Under the Memorandum Opinion of November 26, 1986 and Request for a Stay at 5 (Dec. 23, 1986); J.A. at 276. This is as it should be, for generalist courts are singularly ill-situated to regulate complex industries under the rubric of a solitary consent decree resolving a single (albeit important) lawsuit.
On this point, my colleagues and I are in happy accord. As the court today holds, “the trial court’s Order does not extend beyond the questions presented by the provision of exchange access and Dial 8 lines to GSA at lower rates than those charged to AT & T.” Maj. op. at 1431. Thus, whether the relief afforded to AT & T is grounded in the consent decree or in the FCC’s interpretation of its own regulations, the result is the same: GSA will be charged identical local access rates, regardless of which switch it elects to purchase. The dispute with respect to local access *450 rates, hotly contested in the District Court, is simply no longer a live controversy.
II
As Bell Atlantic itself concedes, the FCC’s order does not address itself to the Dial 8 lines and therefore does not moot that controversy. That issue, however, was not squarely resolved by the District Court’s opinion and, as the case comes to us, is unripe for disposition. AT & T’s principal complaint before the trial court concerned the disparate access charges; at the same time, AT & T claimed that US West’s bid for Centrex-ETN switching services failed to cover the cost of Dial 8 trunks (or “intermachine” lines). Memorandum in Support of AT & T’s Emergency Motion to Compel US West to Comply with Nondiscrimination Requirements of Decree at 4, 6-7 (Nov. 6, 1986); J.A. at 39, 41-42. In response, US West claimed that its bid to GSA did indeed cover these costs. US West Memorandum in Opposition to AT & T’s Emergency Motion to Compel US West to Comply with Nondiscrimination Provisions of Decree (“US West Opposition”) at 17-18 (Nov. 18, 1986); J.A. at 196-97. The District Court never squarely resolved this issue; instead, the trial court’s order required, generally, US West to price “other local exchange facilities” at the same rates. But there was no determination either that Dial 8 lines were in fact local exchange facilities (an issue contested by the parties on appeal) or that US West’s pricing had not been at the “same rate” in its bid to GSA. Indeed, so minor was the role of Dial 8 lines in this drama that the District Court did not even refer to them at all in the course of its analysis. For all we can tell, the District Court simply did not focus on the issue (nor, in fairness, did it have occasion to).
In one sense, the disparity of treatment in the local access charges was factually an easy case. There was no cost difference for the BOC regardless of whether the BOC or AT & T supplied the switch. A different price necessarily meant, as the trial court saw it, price discrimination, at least with respect to that element of service; the only real question was the legal one of whether such disparities were covered by the MFJ. Not so with Dial 8 lines. The cost to the BOC may be significantly different depending on whether AT & T or the BOC supplies the switch. Thus, a price disparity in this setting does not necessarily mean a price discrimination. 3 To so conclude would require factual findings, which as we have seen are entirely lacking in this case (again, through no fault of Judge Greene). 4
Under these circumstances, “the appropriate course of action is to vacate the judgment and remand the case.” Rule v. International Ass’n of Bridge, Etc., Workers, 568 F.2d 558, 568 (8th Cir.1977). This is certainly the appropriate disposition here, where the entire focus of the case has been mooted by the FCC’s order and the present record is inadequate to render judgment as to the Dial 8 lines.
Ill
US West claims that the case is not moot for two separate reasons. First, US West argues that “[t]he Memorandum Opinion and Order is only a tentative interim decision pending completion of the rulemaking *451 proceeding commenced at the same time; in contrast, the District Court’s Orders would be effective indefinitely, and indeed they substantially preempt the outcome of the rulemaking proceeding.” Reply Brief for US West at 11-12. There is, admittedly, a grain of truth to this. But it is only a grain.
The FCC issued a Notice of Proposed Rulemaking, together with its order mandating equal access charges. But fairly read, the thrust of the NOPR is to invite comment on the “larger set of issues relating to the appropriate access charge treatment of private networks and private line users generally.” 2 F.C.C. Rcd. 7458, 4762 n. 29 (1987). In particular, the FCC was concerned with the impact that its treatment of Centrex-ETS would have on PBX-ETS, a competitive system. Since “concerns about discrimination, efficiency, and enforcement” motivated the FCC to issue the NOPR in the first place, see Amendment of Part 69 of the Commission’s Rules Relating to Private Networks and Private Line Users of Local Exchange, 2 F.C.C. Red. 7441, 7442 (1987), it would appear highly unlikely that the FCC would overturn the basic thrust of its Dec.- 18, 1987 order, which was to eliminate “unreasonable discrimination and undue preferences among rates for interstate services.” Bell Atlantic Petition, supra, 2 F.C.C. Rcd. at 7458. But, even more basically, the FCC’s order now appears final. By my reckoning, the time for appeal has expired, and none of the parties has informed us that judicial review has in fact been sought.
Second, US West argues that “the District Court’s Orders appear to impose requirements with respect to both exchange access charges and charges for facilities used solely for intra-network purposes (the ‘Dial 8’ trunks); the FCC’s Order deals only with the former, not at all with the latter subject. Because the FCC’s Order is not coextensive with the District Court’s Orders, it cannot moot them.” Reply Brief for US West at 12. But as explained above, the District Court made no specific findings with respect to the Dial 8 lines, and this aspect of the case is not ripe for review.
For its part, AT & T claims that the case is not moot for two reasons. Neither has merit. First, AT & T claims that the argument for mootness “rests on a single false premise: that the relief sought by AT & T’s emergency motion was the construction of the FCC’s access charge regulations that was issued on December 18, 1987.” Supplemental Brief of AT & T at 4-5. AT & T claims that this was not its aim; if it were, AT & T would have gone to the Commission in the first instance rather than to court. Moreover, that relief is “[injsufficient to prevent discrimination against AT & T in the future.” Id. AT & T argues that “[njothing in the FCC’s Order prevents US West from developing another switching service that is also functionally and competitively identical to AT & T’s CCSA services ... and again unilaterally exempting its switching service customers from the federal access charges that apply to the services of US West’s inter-exchange competitors.” Id. at 6. But this mini-parade of horribles is, of course, like other such parades. It is mere speculation. It is manifestly a hypothetical situation that courts wisely refrain from addressing.
Second, AT & T contends that the case is not moot because “the District Court’s decision is a holding that US West violated the Decree in the past.” AT & T maintains that because “[t]he question of the appropriate sanctions for US West’s past conduct is now pending, ... the FCC’s December 18th Order cannot moot this controversy.” Id. at 7-8.
While we are indeed told that the Department of Justice is “considering” whether to seek sanctions, that issue will obviously be taken up in separate proceedings if and when the Department decides to seek them. The request lodged by AT & T seems to be dying on the vine; there is not the slightest indication that the Department is in fact going to act favorably on it. Transcript of Oral Argument at 72. And the mere possibility of such proceedings cannot create jurisdiction over an otherwise moot case.
In the meantime, contrary to AT & T’s assertions, the District Court’s opinion *452 clearly does not reach any conclusions with respect to past violations of the consent decree. AT & T sought, and the District Court granted, prospective relief only in the form of a declaratory judgment. 5
Finally, the court suggests that the mootness claim boils down to a contention that the FCC has primary jurisdiction in this case. Not so. Holding this case moot does not depend on a conclusion that the FCC has primary jurisdiction over local access rates. Indeed, the court’s suggestion to the contrary highlights a basic error in its analysis. The court appears to reason that the mootness claim and primary jurisdiction argument amount to the same contention because the District Court and the FCC operated under different jurisdictional bases, and the potential remedies that each had to offer differed. The court’s position thus appears to be that the FCC’s action, taken in the course of construing its own statutory mandates, can never moot the District Court’s orders. It matters not, in my colleagues’ view, that the actual relief granted by the agency is the same as that given by the trial court. This reasoning goes further than simply rejecting the argument, advanced most vigorously by Ameritech, that the FCC has primary jurisdiction in matters in which the FCC and MFJ overlap. Indeed, this reasoning goes well beyond that, carrying it (apparently) to the position that the District Court has exclusive jurisdiction whenever the court and agency exercise their separate jurisdictions in overlapping areas of the MFJ and the Communications Act. Whatever the exact relationship between the District Court’s rulings and the FCC’s orders in cases of actual conflict, all that is needed to dispose of this case is to recognize that the District Court and the FCC have concurrent jurisdiction over local access rates. 6 This, the court, in effect, refuses to do.
IY
A final word. My colleagues’ construction of the term “other persons” in Section 11(B)(3) of the MFJ is deeply troublesome. 7 Specifically, the opinion construes “other persons” to encompass GSA. Maj. op. at 1427. But this construction confronts head on the objection, advanced most vigorously by Pacific Telesis, that the MFJ’s prohibitions against price discrimination were not intended to cover “private networks” such as GSA’s. Today’s bold construction thus broadens significantly the possible reach of the term “other persons” and in so doing creates (seemingly) a far reaching requirement for broad price uniformity not mandated by the MFJ.
That the MFJ was not intended to cover local access by private network facilities is evidenced by the District Court’s decision approving the MFJ, in which the court found “justified the parties’ decision not to address” the demands of private networks for “equal access requirements]” that would apply to them. United States v. AT & T, 552 F.Supp. 131 , 196 n. 269 (D.D.C. 1982), aff'd mem. sub. nom. Maryland v. United States, 460 U.S. 1001 , 103 S.Ct. 1240 , 75 L.Ed.2d 472 (1983).
The court’s response to these objections is unsatisfying. It addresses the argument as follows:
[T]he trial court’s discussion in this note [ 552 F.Supp. at 196 n. 269] refers to the *453 exchange access requirements of section 11(A), which confers rights solely upon “all interexchange carriers and information service providers.” The court does not refer to the nondiscrimination provision of section 11(B), which forms one focus of the present controversy and which uses the broader term “other persons.”
Maj. op. at 1429. The opinion adds that “[i]n any event, this court is not bound by the District Court’s earlier comments about the proper interpretation of some portion of the MFJ.” Maj. op. at 1429.
Although technically correct — the District Court refers to section 11(A) only — it seems anomalous at best for the District Court to have rejected coverage under the MFJ for private carriers via section 11(A), while at the same time intending private networks to gain the same rights through section 11(B). Moreover, Appendix B, upon which the opinion also reliés and which contains the language most favorable to AT & T’s position, is only incorporated into the MFJ through section 11(A), not section 11(B). The most natural reading of the MFJ is that private networks were not intended to be covered by the MFJ’s anti-discrimination provisions at all.
The better interpretation would be to construe “other persons” to encompass the BOCs themselves. To be sure, this construction has its own problems. For example, if “other persons” is read to include the BOCs, section 11(B)(2) would logically require the BOCs to treat AT & T no differently from themselves in the establishment and dissemination of technical information — an obvious anomaly. 8 In the final analysis, it seems the better course to admit that section 11(B) does not, by its terms, support AT & T’s position but that Appendix B, the underlying purposes motivating the decree, and its more recent “judicial gloss” all look the other way and point in AT & T’s favor. Without expressing my own views as to the ultimate outcome on the merits of this case, this analysis of “other persons” at least has the advantage of not unnecessarily broadening the scope of the MFJ’s coverage. In contrast, the court’s opinion today appears to leave MFJ coverage broader and more uncertain than did Judge Greene’s opinion, which was after all rendered under rather exigent circumstances.
* * * * * *
For the foregoing reasons, I respectfully dissent.
. My colleagues attempt to distinguish these cases on their facts, but does so on points irrelevant to the analysis required under mootness doctrine. For example, the court's observations that, unlike the situation in Detroit Fire Fighters Ass'n, AT & T did not petition the FCC for a favorable ruling or that only one party argued that the case is moot are, with all respect, beside the point. The significance of these cases is that they show instances in which the same relief, derived from construction of a different body of law, has mooted the underlying controversy. Cf. Arrow Honor Society v. Heckler, 464 U.S. 67 , 104 S.Ct. 373 , 78 L.Ed.2d 58 (1983) (a Universi *449 ty’s clearly articulated policy that it would ban an all-maie honor society from campus until it discontinued its discriminatory membership policy — regardless of the outcome of the lawsuit before the Court — mooted the honor society’s suit challenging the agency’s determination that federal law and agency regulations required the University to ban the honor society from campus); Douglas v. Donovan, 704 F.2d 1276 (D.C.Cir.1983) (agency appeal mooted by out-of-court settlement reached by private parties).
. The FCC's decision was released December 18, 1987 — after opening briefs of appellants and appellees in this case were required to be filed.
. Dial 8 lines are conceptually the same as "tails.” As US West originally argued in its opposition to AT & T’s emergency motion, "AT & T would have the Court impute to US West and its customers additional (and in fact duplicative) trunk costs which are in fact not real, a ploy that it successfully urged the FCC to reject when MCI made the same request regarding the 'tails' it has to pay for connection to an AT & T CCSA switch.” US West Opposition at 18; J.A. at 197.
US West argued that although it had agreed to supply GSA the Dial 8 trunk lines at "no extra charge,” that was only because it was cheaper to offer GSA Centrex and ETN services in two machines rather than one, and "the trunk costs between the machines are fully covered in the price GSA is paying.” US West Opposition at 18; J.Á. at 197.
. The District Court held: “The fact is that if identical service is provided by an interexchange carrier and a Regional Company, the decree requires the application of the same access rates, regardless of differences in network configurations." Slip op. at 5; J.A. at 22.
. Notably, neither US West nor AT & T challenges Bell Atlantic’s argument with respect to the Dial 8 lines; both recognize that the heart of the matter is the local access charges.
. If anything, considerations of comity argue quite the other way, namely in favor of exercising our discretionary power to hold this case moot (even if the FCC’s actions had not already completely mooted this controversy). See, e.g., Montgomery Environmental Coalition v. Costle, 646 F.2d 568 (D.C.Cir.1980) (dismissing petition for review of EPA decision on grounds of mootness and federal-state comity); Chamber of Commerce of the United States v. United States Dep't of Energy, 627 F.2d 289, 291 (D.C.Cir.1980) (affirming dismissal of suit by district court on discretionary grounds of mootness: "In some circumstances, a controversy, not actually moot, is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant.’’).
.Section 11(B)(3) proscribes discrimination by a BOC "between AT & T ... and other persons ... in the interconnection and use of the BOC's telecommunications service and facilities or in the charges for each element of service.”
. Section 11(B)(2) requires that "[n]o BOC shall discriminate between AT & T ... and other persons ... in the ... establishment and dissemination of technical information and procurement and interconnection standards."