District Court (Pa.) Denies Motion to Stay TCPA Case under Primary Jurisdiction Doctrine

In Morse v. Allied Interstate, LLC, 2014 WL 2916480 (M.D.Pa. 2014), Judge Nealon denied a Motion to Stay a TCPA under the Primary Jurisdiction Doctrine because the matters were not appropriate for submission to the FCC.

Defendant requests this matter be placed on hold because the allegations of the complaint turn on two issues currently pending before the Federal Communications Commission (“FCC”): (1) whether the TCPA applies to non-telemarketing calls, such as debt-collection calls; and (2) whether dialing equipment must have a current capacity to generate and dial random or sequential numbers in order to be considered an Automatic Telephone Dialing System. (Doc. 17, pp. 1–2). Plaintiff asserts that the FCC has already addressed these issues. (Doc. 18, pp. 4, 7). ¶ The United States Court of Appeal for the Third Circuit and the FCC have already determined that the TCPA applies to non-telemarketing calls. See  Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 273 (3d Cir.2013) (applying the TCPA to debt collections calls made to a cellular phone); In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Request of ACA International for Clarification and Declaratory Ruling, 23 FCC Rcd 559, 564 (December 28, 2007) (applying the TCPA to debt collection calls placed to wireless phones). Further, the second issue presented, whether dialing equipment must have a current capacity to generate and dial random or sequential numbers in order to be considered an Automatic Telephone Dialing System, has also generally been addressed and would not be an initial determination by the FCC. See  In re Rules Implementing the Telephone Consumer Protection Act of 1991; Request of ACA International for Clarification and Declaratory Ruling, 23 FCC. Rcd 559, 566, ¶ 14. (December 28, 2007) (“[T]he Commission said that, to find that calls to emergency numbers, health care facilities, and wireless numbers are permissible when the dialing equipment is paired with predictive dialing software and a database of numbers, but prohibited when the equipment operates independently of such lists, would be inconsistent with the avowed purpose of the TCPA and the intent of Congress in protecting consumers from such calls.”), citing In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd 14014, 14092–93, ¶ 133 (June 26, 2003). Because these issues are not being presented to the FCC for an initial, first-impression interpretation but for reconsideration or clarification, a stay based on the doctrine of primary jurisdiction is not appropriate. See  Puerto Rico Maritime. 856 F.2d at 549. The issues have been generally addressed by the FCC and the issues presented are not so technical that this Court would be unable to decide the factual issues of this case based on conventional experiences, ordinary competence, and guidance from the prior FCC decisions. Accordingly, Defendant’s motion for a stay will be denied.