In King v. Time Warner Cable, 2015 WL 4103689 (S.D.N.Y.,2015), Judge Hellerstein refused to stay a TCPA “called party” case under the Primary Jurisdiction Doctrine.
“[P]rior express consent by the called party” is a safe harbor against liability under the TCPA, 47 U.S.C. § 227(b)(1)(A), and TWC claims that Luiz Perez, the prior owner of Ms. King’s phone number, consented to receive calls regarding his past due account balance. TWC argues that, because it intended to reach Luiz Perez at the number (915) 861–0528, Mr. Perez’s consent shields TWC from liability regardless of who actually received the call. This defense would require the Court to interpret the term “called party” in the statute to mean the intended recipient of the call, rather than the actual recipient or the owner of the called phone line. In a case with very similar facts, Magistrate Judge McCarthy in the Western District of New York found that “called party” refers to the actual recipient of a phone call. Sterling v. Mercantile Adjustment Bureau, LLC, No. 11–cv–639, 2014 WL 1224604 (W.D.N.Y. Sept. 25, 2014). The opinion was affirmed by Judge Arcara, and the caller appealed. The Second Circuit requested an amicus brief from the Federal Communications Commission (“FCC”) on the issue, but the agency refused to take a position on the ground that petitions on this question were pending before it. See, e.g., Petition for Expedited Declaratory Ruling of United Healthcare Services, Inc., CG Docket No. 02–278 (filed Jan. 16, 2014), available at http://appsint.fcc.gov/ecfs/comment/view?id=6017584805. Accordingly, the Court of Appeals stayed the case pending the outcome of the FCC’s petitions. Sterling v. Mercantile Adjustment Bureau, LLC, No. 14–12–47, Doc. No. 74 (2d Cir. Mar. 2, 2015). The FCC has not yet promulgated rules on the issue or submitted a brief to the Court of Appeals, but on June 18, 2015, it adopted a package of declaratory rulings that it summarized in a press release. In relevant part, it says that “Reassigned Numbers Aren’t Loopholes–If a phone number has been reassigned, companies must stop calling the number after one call.” Press Release, Federal Communications Commission, FCC Strengthens Consumer Protections against Unwanted Calls and Texts (June 18, 2015), available at https://www.fcc.gov/document /fcc-strengthensconsumer-protections-against -unwanted-calls-and-texts (“FCC June 18, 2015 Declaratory Rulings Press Release.”). TWC asks this Court to stay the proceedings as well pending the FCC’s submission to the Court of Appeals. Under the doctrine of primary jurisdiction, a federal court may “refer a matter extending beyond the conventional experiences of judges or falling within the realm of administrative discretion to an administrative agency with more specialized experience, expertise, and insight.”. . . Primary jurisdiction is not properly invoked here, where the benefit of waiting is slight and, with jury selection scheduled to begin in less than three weeks, the disruption caused by a delay would be great. The meaning of the clause “prior express consent of the called party” in a generally applicable law like the TCPA presents a question of conventional statutory interpretation requiring no technical expertise. The text is clear and unambiguous on its face: called party means the party that was called. If Congress intended to refer to the party that the caller wanted to reach when it dialed the number, it would have used different language. Further, the Second Circuit appears to be an outlier in delaying its decision. The other circuits to consider the meaning of called party have interpreted it to mean the actual recipient of the call, as I do, and they have reached their decisions without difficulty. See Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir.2014); Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 643 (7th Cir.2012) (“We conclude that ‘called party’ in § 227(b)(1) means the person subscribing to the number at the time the call is made”). Many district courts have, too. E.g., Harris v. World Financial Network Nat. Bank, 867 F.Supp.2d 888 (E.D.Mich.2012). Indeed, the issue is not nearly as contested as TWC portrays it. While several district courts have agreed to stay proceedings pending the FCC’s input, the Court is not aware of any decision that has found “called party” to mean “meant-to-have-called party.” My interpretation is also supported by the FCC’s notes of its June 18, 2015 meeting, which suggest that any future FCC rulemaking or submission to the Court of Appeals on the issue will likely track the interpretation adopted by the courts. See FCC June 18, 2015 Declaratory Rulings Press Release, supra. Defendant’s motion to stay is denied. “Called party” clearly refers to the party actually called. Defendant’s intent is relevant only on the issue of willfulness.