In Kristensen v. Capital One Bank, N.C., 2015 WL 2151751 (C.D.Cal. 2015), Judge Gee granted a stay of a TCPA re-assigned number case under the Primary Jurisdiction Doctrine.
The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir.2008). It is well-settled that “[u]niformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.” Far E. Conference v. United States, 342 U.S. 570, 574–75, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). The doctrine is properly applied when the following factors are present: “(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 authority that (4) requires expertise or uniformity in administration.” Syntek Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir.2002) (internal citation omitted). The doctrine is intended to protect agencies (like the FCC) which have “quasi-legislative powers” and are “actively involved in the administration of regulatory statutes.” Clark, 523 F.3d at 1115 (internal citation and quotation marks omitted). “[T]he doctrine is a ‘prudential’ one, under which a court determines that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.” Clark, 523 F.3d at 1114. The issues pending before the FCC are directly relevant to this case. Defendants’ liability under the TCPA for autodialed calls to wrong numbers or numbers that have been reassigned will be directly determined by the FCC’s response to the pending petitions. While the proposed class includes all persons who received autodialed calls to their cell phones from Defendants, Defendants contend that debtors who have given their correct phone number to Credit One have generally given express consent for that number to be called. The FCC does not have regulatory authority over the state law claims, but those claims derive from the identical situation as the TCPA claims, and it would be impractical to resolve them separately. The issue of whether parties are liable for calls to wrong or reassigned numbers will be central to the determination of this case, if not dispositive. Plaintiffs contend that any prospective rule change by the FCC as a result of the petitions would not be applied retroactively, and therefore would not apply to the present matter. Opposition to Motion to Stay Proceedings (“Opposition to Stay”) at 20–21 [Doc. # 28]. The FCC’s rulemaking need not apply retroactively, however, to provide guidance in this case. Courts have an interest in uniformity and consistency even where they are not bound by an agency’s rulemaking. See Barahona v. T–Mobile US, Inc., 628 F.Supp.2d 1268, 1271 (W.D.Wash.2009) (“Referral of this matter to the FCC will also promote uniformity and consistency in its regulation of the telecommunications industry.”). The Court exercises its prudential authority to stay the action pending the FCC’s resolution of the pending petitions. See Brown v. DIRECTV, LLC, No 2:13–cv–01170–DMG, Doc. # 198 at 4 (C.D.Cal. Dec. 11, 2014) citing Fontes v. Time Warner Cable, Inc., No. 2:14–cv–02060–CAS, 2014 WL 2153919 at * 2 (C.D.Cal.2014). A stay pending the FCC’s action on the Petitions will conserve judicial and party resources and may prevent inconsistent rulings. Because the FCC’s disposition of the petitions may bear on the necessity of the third-party complaint, the Court will also hold Credit One’s motion to file third party complaint in abeyance pending the FCC’s action on the petitions.