District Court (Cal.) Declines to Stay TCPA Case Under Primary Jurisdiction as to What Constitutes an ATDS

In Izor v. Abacus Data Sys., No. 19-cv-01057-HSG, 2019 U.S. Dist. LEXIS 130865, at *6-9 (N.D. Cal. Aug. 5, 2019), Judge Gilliam refused to stay a TCPA 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 . . . [and] is to be used only if a claim requires resolution of an issue of first [*7]  impression, or of a particularly complicated issue that Congress has committed to a regulatory agency, and if protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008) (internal quotation marks and citations omitted). The doctrine is not an avenue for courts to “secure expert advice” from administrative agencies “every time a court is presented with an issue conceivably within the agency’s ambit.” Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d 1166, 1172 (9th Cir. 2002). Rather, it is only appropriately invoked in cases involving “an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency.” Id.  The Court finds that the primary jurisdiction doctrine does not support a stay pending FCC guidance concerning what constitutes an ATDS. As Defendant notes in its motion, the FCC released a Public Notice seeking comment on the issue in May 2018. Mot. at 5. But the Ninth Circuit has since definitively answered the question. Marks v. Crunch San Diego, LLC held that the term ATDS “means equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically (even if the system must be turned on or triggered by a person).” 904 F.3d 1041, 1053 (9th Cir. 2018). Marks issued on September 20, 2018, months after the FCC began seeking public comments on the what constitutes an ATDS. Marks thus is controlling authority in the Ninth Circuit and is binding on the Court. And the Ninth Circuit’s resolution of the issue without waiting for FCC guidance further demonstrates that the issue (1) is no longer a matter of first impression, and (2) is not “a particularly complicated issue” that merits waiting for FCC guidance. See Brown, 277 F.3d at 1172.  In hopes of sidestepping Marks, Defendant stresses that the FCC solicited additional comment on what constitutes an ATDS following the Ninth Circuit’s decision, purportedly “confirm[ing] the state of confusion and the need for resolution of this central issue.” Mot. at 7. But since then, the Ninth Circuit has confirmed that Marks is the law of the Ninth Circuit. See Deguid v. Facebook, Inc., 926 F.3d 1146, 1150 (9th Cir. 2019) (holding that the Marks “definition governs this appeal”). In essence, then, Defendant asks this Court to hold that the state of the law is so unclear that this case must await FCC guidance when the Ninth Circuit has repeatedly found otherwise. The Court declines [*9]  that invitation and finds that primary jurisdiction does not support granting Defendant’s request for a stay.