In Sliwa v. Bright House Networks, LLC, 2016 WL 3901378, at *3-5 (M.D.Fla., 2016), Judge Steele refused to stay a TCPA case pending the outcome of the proceedings in the DC Circuit.
Bright House’s argument that a stay is warranted in light of the appeal pending in the D.C. Circuit assumes two things: first, that the Circuit Court’s ruling is likely to be favorable to Bright House’s position in this case, and second, that such ruling will be binding on this Court.8 As to the first of these assumptions, the Court does not agree that the Circuit Court’s decision is likely to favor Bright House. The D.C. Circuit will not invalidate the Final Order “unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Vernal Enters., Inc. v. Fed. Commc’ns Comm’n, 355 F.3d 650, 658 (D.C. Cir. 2004) (quoting 5 U.S.C. § 706(2)(A)). Under this exacting standard, the Circuit Court’s review “is highly deferential; [it] must presume the validity of the agency’s action,” and a decision invalidating the FCC’s Final Order is appropriate “only if the agency’s decision is not supported by substantial evidence, or the agency has made a clear error in judgment.” Id. (internal alterations and citation omitted). In other words, it is more likely than not that the D.C. Circuit will uphold the Final Order. Even if the Circuit Court does reach an opinion favorable to Bright House’s position, the extent to which this Court would be bound thereby is not entirely clear. Generally speaking, “[b]inding precedent for all is set only by the Supreme Court, and for the district courts within a circuit, only by the court of appeals for that district.” Murphy v. F.D.I.C., 208 F.3d 959, 965 (11th Cir. 2000) (quoting In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C. Cir. 1987), aff’d sub nom., Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989)). Where, however, multiple petitions challenging an FCC (or other agency) regulation are consolidated in one circuit under 28 U.S.C. § 2112 – as here – there is support for the proposition that the assignee circuit “bec[o]me[s], and remains, the sole forum for addressing … the validity of the FCC’s rules.” Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1057 (9th Cir. 2008) (alteration in original) (quotation omitted); see also GTE S., Inc. v. Morrison, 199 F.3d 733, 743 (4th Cir. 1999) (Fourth Circuit lacked jurisdiction to review FCC’s pricing rules because petitions challenging those rules had been consolidated under Section 2122(a) and assigned to Eighth Circuit). Thereafter, a “decision regarding the validity of the [challenged interpretations] is binding outside of th[at] … Circuit.” Peck, 535 F.3d at 1057; see also ONRC Action v. U.S. Bureau of Reclamation, No. CIV. 97-3090-CL, 2012 WL 3526833, at *30 (D. Or. Jan. 17, 2012) (“[O]pinions issued by other Circuit Courts of Appeal deciding consolidated petitions for review of agency regulations are binding outside that circuit.” (citing id.)) (subsequent history omitted). This case law stands for the proposition that, if the D.C. Circuit Court were to vacate (or uphold) one or more of the challenged FCC interpretations, this Court could not instead continue to follow the FCC’s now-vacated (or not follow the FCC’s now-affirmed) interpretations in resolving Plaintiff’s claims. Peck, 535 F.3d at 1057; see also ONCR Action, 2012 WL 3526833, at *30 (Oregon district court was bound by Eleventh Circuit’s decision on consolidated appeal upholding EPA’s water transfer regulation). But see O’Hanlon v. 24 Hour Fitness USA, Inc., No. 15-CV-01821-BLF, 2016 WL 815357, at *5 (N.D. Cal. Mar. 2, 2016) (“Even assuming that the decision from the D.C. Circuit will be favorable to Defendants, it is, of course, not binding on this Court.”). Even assuming this Court is bound to follow the result reached by the D.C. Circuit, until that court issues its opinion, the FCC’s Final Order “has the force of law” in this Court. Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1121 (11th Cir. 2014) (citation omitted). Indeed, this court, like all district courts, “lack[s] jurisdiction under the Hobbs Act to consider [the] argument that the [FCC] incorrectly interpreted [statutory language].” Murphy, 797 F.3d at 1305. Thus, where a lawsuit implicates those interpretations, the “district court must afford [the] final order[ ] deference and may only consider whether the alleged action violates FCC rules or regulations.” Id. at 1307. Staying this case because the Circuit Court may conclude that FCC incorrectly interpreted the TCPA is the opposite of affording the Final Order deference. Granting a stay premised on the contention that the FCC got it wrong could, in fact, amount to a constructive “refus[al] to enforce an FCC interpretation” –an action this Court is expressly prohibited from taking – and a “violat[ion of] the Hobbs Act’s prohibition on district court review of FCC orders.” Id. This reason, the Court concludes, is alone sufficient to deny Bright House’s Motion for Stay. C. Other Grounds for Granting a Stay. Even if Mais and Murphy did not counsel against a stay in this case, the Court would still find a stay inappropriate for at least two reasons. First, there is no indication of when the D.C. Circuit will hear oral argument in ACA International, let alone issue an opinion. After it is issued, that decision will likely be appealed to the Supreme Court. If the Supreme Court agrees to hear the case, it will be at least another several months before it issues an opinion, which opinion could disagree with the Circuit Court’s holding and either vacate or reinstate the FCC’s conclusions. In short, the indefinite length and uncertain outcome of the appeal substantially weigh against requiring Plaintiff “to stand aside while a litigant in another [case] settles the rule of law that will define the rights of both.” Landis, 299 U.S. at 255. The Court might be inclined to grant the stay if there existed a strong possibility (or any possibility) that the D.C. Circuit’s opinion would “dispos [e] of the litigation by creating a ‘death knell’ for either plaintiff or defendant.” Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1274 (11th Cir. 2000). But, even if the D.C. Circuit’s decision is favorable for Bright House and the conclusions reached therein are binding on this Court, Plaintiff’s TCPA claim will proceed.10 Discovery will presumably be needed to determine, among other things, whether Bright House called Plaintiff using technology with the present ability to auto-dial numbers, and whether Bright House had previously obtained the consent of the individual it was allegedly trying to reach. Further, as the Court understands it, the appeal will not affect Plaintiff’s contention that Bright House called him using a prerecorded or automated voice, which is an independent basis for stating a claim under the TCPA. See Vaccaro v. CVS Pharmacy, Inc., No. 13-CV-174-IEG RBB, 2013 WL 3776927, at *1 n.2 (S.D. Cal. July 16, 2013); Vance v. Bureau of Collection Recovery LLC, No. 10-CV-06324, 2011 WL 881550, at *3 (N.D. Ill. Mar. 11, 2011). Because this Court is required to treat the FCC’s Final Order with deference and may not entertain arguments challenging its correctness, and because the D.C. Circuit’s decision – when reached – will not require immediate dismissal of Plaintiff’s TCPA claim, the Court finds an indefinite stay of this case unwarranted.