District Court (Ala.) Stays TCPA Case under FCC’s Primary Jurisdiction

In Pickens v. American Credit Acceptance, LLC,  2014 WL 4662512 (S.D.Ala. 2014), Judge Nelson stayed a TCPA case under the Primary Jurisdiction Doctrine.

Primary jurisdiction doctrine applies “whenever enforcement of [a] claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” United States v. W. Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161 (1956). “ ‘[T]he main justifications for the rule of primary jurisdiction are the expertise of the agency deferred to and the need for a uniform interpretation of a statute or regulation.’ “ Boyes v. Shell Oil Prods. Co., 199 F.3d 1260, 1265 (11th Cir.2000) (quoting Cnty. of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1310 (2d Cir.1990)). While “[n]o fixed formula exists for applying the doctrine of primary jurisdiction,” United States v. W. Pac. R.R. Co., 352 U.S. at 64, “[t]here are four factors uniformly present in cases where the doctrine properly is invoked: (1) the need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory scheme that (4) requires expertise or uniformity in administration.” In re Horizon Organic Milk Plus DHA Omega–3 Marketing and Sales Practice Litigation, 955 F.Supp.2d 1311, 1348 (S.D.Fla.2013) (quoting United States v. Gen. Dynamics Corp., 828 F.2d 1356, 1362 (9th Cir.1987) (citing Ricci v. Chi. Mercantile Exch., 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973); Western Pac. R.R., 352 U.S. at 59, 77 S.Ct. 161; United States v. Pac. & Atl. Ry. & Navigation Co., 228 U.S. 87, 33 S.Ct. 443 (1913); United States v. Yellow Freight Sys., 762 F .2d 737 (9th Cir.1985))). All four of these factors typically associated with primary jurisdiction are clearly met in the instant case.  (1) The need to resolve an issue.    The questions which Defendant wishes to have answered during a proposed stay involve the interpretation of two terms in the TCPA. The first question is whether the term “capacity” in the part of the TCPA defining the characteristics of a “automatic telephone dialing system” refers to “present capacity” or “theoretical capacity.” Doc. 19 at 3; Doc. 18 at 3; see 47 U.S.C. § 227(a)(1). The second question is who the term “called party” refers to in the part of the TCPA detailing the consent exception in a situation where a cell phone number has been reassigned. Doc. 15 at 20; Doc. 18 at 3; see 47 U.S.C. § 227(b)(1)(A). Answers to both of these questions are needed to resolve issues in this case. Specifically, Count II of the complaint (doc. 1 at 4) requires that Plaintiffs show that the Defendant utilized either an ATDS or an “artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). The same count also requires a decision on whether the “called party” consented, as the consent exception applies to a violation of the prohibition on using either an ATDS or an “artificial or prerecorded voice.” Id. (2) Placed by Congress within the jurisdiction of an administrative body having regulatory authority  The implementation and interpretation of the TCPA have been placed squarely within the jurisdiction of the FCC. See 47 U.S.C. § 227(b)(2) (“The Commission shall prescribe regulations to implement the requirements of this subsection.”) In response, the FCC has issued rules clarifying and interpreting the TCPA and its regulations. See, e.g., In re Rules & Regulations Implementing Telephone Consumer Protection Act of 1991, CG Docket No. 02–278, Declaratory Ruling, 23 FCC Rcd. 559, 559–60 (2008). (3) Pursuant to a statute that subjects an industry or activity to a comprehensive regulatory scheme The TCPA is a comprehensive regulatory scheme governing the use of automated telephone equipment that both parties agree applies to Defendant’s ability or inability to call Plaintiffs’ cell phone number. See Doc. 15 and Doc 18 generally.  (4) Requiring expertise and uniformity in administration  The FCC has expertise in the telecommunications area due to the fact that the TCPA and other statutes have been entrusted to its care for interpretation and implementation. See, e.g., 47 U.S.C. § 227; 47 U.S.C. § 201 (Communications Act of 1934); 47 U.S.C. § 160 (Telecommunications Act of 1996). The FCC is more wellsuited to decide the question of what constitutes an “automatic telephone dialing system,” which is a highly technically question of interpretation within the “special competence of [this] administrative agency.” Boyes, 199 F.3d at 1265.  Even if this court did have the expertise necessary to decide these questions, piecemeal adjudication of what constitutes “consent” would lead to uneven application of the TCPA. Rather than precipitate the inconsistency that might be created by “judicial interference,” ( Boyes, 199 F.3d at 1265) this court can foster uniformity through “preliminary resort” to the proper administrative body. See, Far. E. Conference v. United States, 342 U.S. 570, 574 (1952).  (5) Staying litigation will not prejudice Plaintiffs Plaintiffs strongly oppose a stay before discovery has been concluded. Doc. 18 at 4–5, 14. However, the undersigned finds that Plaintiffs will not be prejudiced by this temporary interruption, which will serve to “protect[ ] the administrative process from judicial interference.” Boyes, 199 F.3d at 1265. Discovery will resume where it left off prior to the stay and may be sharply focused by any decision the FCC makes, promoting efficiency for this court and for Plaintiffs. Decisions pending before the FCC Plaintiffs’ Motion to Stay identifies seven different petitions that are currently pending before the FCC that appear to relate to these issues raised in the instant litigation. However, this court has identified three which speak specifically to the questions necessary for adjudicating this case. The petitions of “Communication Innovators” for a declaratory ruling (Doc. 15–Ex.13) and the “Professional Association for Customer Engagement” (“PACE”) for a declaratory ruling (Doc. 15–Ex.20) address the meaning of “capacity” in the definition of an ATDS. See, 47 U.S.C. § 227(a)(1). The petition of “United Healthcare Services, Inc.” for an expedited declaratory ruling (Doc. 15–Ex.24) addresses the issue of consent with relation to a reassigned telephone number. See, 47 U.S.C. § 227(b)(1)(A). Should the FCC weigh in on these petitions in the next six months, this court will be in a better position to decide the questions presented by the instant case.