United States District Court, S.D. Alabama, Northern Division
KATHERINE P. NELSON, Magistrate Judge.
Now before the undersigned United States Magistrate Judge is Defendant's Motion to Stay this litigation (for up to six months) pending expected rulings of the Federal Communications Commission (the FCC) pursuant to the primary jurisdiction doctrine (doc. 15), filed August 14, 2014, along with Plaintiffs' Response in Opposition (doc. 18) and the Defendant's Reply (doc. 19). For the reasons explained herein, the motion to stay is hereby ORDERED.
Plaintiffs Brenda Pickens and Dorothy Chambers established a cell phone account in their names in September 2013 (Doc. 18 at 1). Unknown to the plaintiffs, the telephone number attached to this account had previously been provided by a debtor of American Credit Acceptance, LLC ("ACA"), by the name of Elizabeth Mosley. ACA called the plaintiffs' cell phone many times attempting to contact Elizabeth Mosley.
In connection with those calls, Plaintiffs have brought the instant suit alleging, among other items, the violation of the Telephone Consumer Protection Act of 1991 ("TCPA"). Plaintiffs' Complaint (Doc. 1 at 4); see, 47 U.S.C. § 227. Plaintiffs allege that Defendant employed an "automatic telephone dialing system" ("ATDS") and an "artificial and prerecorded voice" in calling a cellular telephone, in violation of the statute. Id. In defense to these parts of the complaint, Defendant answers that it had the consent of Elizabeth Mosley to call the telephone number in question, as allowed by the statute. Defendant's Answer (Doc. 6 at 11); see, 47 U.S.C. § 227.
Proper adjudication of the instant case requires application and interpretation of the part of the TCPA defining what constitutes an ATDS and the determination of how "consent" operates in the statute when a cellular telephone number has been reassigned. The Federal Communications Commission ("FCC") has power to interpret the TCPA ( see, 47 U.S.C. § 227 ("The Commission shall prescribe regulations to implement the requirements of this subsection.")) and several petitions are now pending before it which Defendant maintains may, in part, answer these questions. Doc. 15 at 2.
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. P. 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. P. 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. P. & 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' ...