Two District Courts (Ala. and N.C.) Decline to Stay TCPA Cases Under Primary Jurisdiction Doctrine

In Shehan v. Wells Fargo Bank N.A., — F.Supp.3d —-, 2014 WL 5529365 (N.D.Ala. 2014), Judge England declined to stay a TCPA case under the Primary Jurisdiction Doctrine.

The primary factors a court considers when determining whether to stay an action based on primary jurisdiction grounds are (1) whether the specialized knowledge of the FCC is needed to answer the questions before the court and (2) whether referral is necessary for a uniform interpretation of the statute at issue. W. Pac. R.R. Co., 352 U.S. at 64. As to the first factor, the issues raised by the UHS and ACA Petitions do not implicate the FCC’s specialized expertise or fact-finding abilities. The “called party” issue is purely a matter of statutory construction (of a non-technical term), which courts are well-equipped to undertake, not a matter requiring administrative expertise. It is not a technical question or factual inquiry uniquely within the agency’s expertise. See e.g., Loggerhead Turtle v. County Council of Volusia Cnty., Fla., 148 F.3d 1231, 1259–60 (11th Cir.1998) (discussing, in dicta, the question of whether artificial beachfront lighting “takes” sea turtles as being within the special competence of the U.S. Fish and Wildlife Service); Columbia Gas Transmission Corp., 652 F.2d at 520 n.14 (explaining the court’s determination regarding enforcement of a payback obligation for diversions prior to a certain date would be materially facilitated by FERC’s informed evaluation of a Representative’s enforcement caution and how the facts of the case fit within that caution). ¶ As to the second factor, the Eleventh Circuit has spoken directly to this issue, providing direct guidance for a uniform interpretation of the statute throughout the Circuit. Wells Fargo has not provided, and the undersigned has not found, any other circuit court that has interpreted “called party” differently or that has created an exception to the rule. It appears the only other circuit court to have addressed the issue follows the same interpretation as the Eleventh Circuit. See Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 640 (7th Cir.2012). Furthermore, the interpretation of the statutory term “called party” is not an issue requiring the exercise of administrative discretion. See Columbia Gas Transmission Corp., 652 F.2d at 520 n.14 (explaining referral is necessary to secure uniformity and consistency in the regulation of business when the issue requires the exercise of administration discretion). ¶ Wells Fargo argues this action should be stayed because the “called party” issue is a matter of first impression before the agency. (Docs. 17 at 13 & 27 at 8). While this issue would be a matter of first impression for the FCC, a factor considered by some courts, see Brown v. MCI WorldCom Network Servs., 277 F.3d 1166, 172 (9th Cir.2002), in light of the factors discussed above, this is insufficient to warrant imposing a stay. Additionally, Wells Fargo’s argument the issues presented in the petitions are “questions of policy” left unanswered by the language of the TCPA, (doc. 27 at 1), is not persuasive. While the meaning of “called party” has policy implications, as all statutory interpretation does, there is no policy consideration requiring the agency’s expertise and fact-finding abilities. ¶ Wells Fargo contends the FCC is “likely to rule on the petitions shortly” because it expects “concrete movement on both [petitions] … within the next six months,” (doc. 27 at 1 (citing doc. 20 at ¶ 11)). Although Wells Fargo expects the FCC to “move on the petition,” there is no indication the FCC will make any kind of ruling in the near future or at all. If the FCC does issue a ruling providing a different interpretation of “called party” or creating an exception applicable to this case, the court will address whether that ruling has retroactive application and what level of deference is due. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 476 U.S. 837 (1984) (discussing the appropriate level of deference); Heimmermann v. First Union Mort. Corp., 305 F.3d 1257, 1260 (11th Cir.2002) (discussing when retroactivity applies to agency interpretation and rules).

In Beiler v. GC Services L.P., 2014 WL 5531169 (M.D.N.C. 2014), Judge Schroeder also declined to stay a TCPA case.

GCS argues that this case raises technical issues on which the FCC has particular expertise and congressionally-delegated discretion. (Doc. 21 at 10–13.) It is true that Congress has delegated authority to the FCC to “prescribe regulations” implementing some of the requirements of the TCPA. 47 U.S.C. § 227(b)(2). It is also true that the FCC “possesses expertise over the statute it implements.” Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 467 (6th Cir.2010). But the interpretation of federal statutes is not a job reserved to the FCC exclusively; it is in fact squarely within the expertise of an Article III court. 1. Application of the TCPA to Debt Collectors.   The provisions of the TCPA make clear that the FCC’s discretion to implement the Act is limited. GCS argues that the FCC is currently considering whether the TCPA “applies to non-telemarketing calls, such as debt-collection calls.” (Doc. 21 at 2.) Besides the fact that the above-cited petitions for rulemaking do not substantiate this claim, this argument appears contradicted by the Act itself. The TCPA generally prohibits autodialed calls to residential landlines, 47 U.S.C. § 227(b)(1)(B); and the FCC has some authority to exempt certain autodialed calls to residential landlines, id. § 227(b)(2)(B). The FCC has in fact exercised this discretion to exempt debt-collection calls to residential landlines. See, e.g., Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 273 (3d Cir.2013); In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F .C.C. Rcd. 559, 566 n. 49 (2008) [hereinafter 2008 TCPA Ruling]. The TCPA also generally prohibits autodialed calls to cell phones, 47 U.S.C. § 227(b)(1)(A)(iii); but the FCC’s authority to create exemptions to this prohibition is substantially more limited, id. § 227(b)(2)(C). And the FCC has acknowledged as much. See 2008 TCPA Ruling, 23 F.C.C. Rcd. at 565. ¶ In an attempt to show the need for the FCC’s expertise on this matter, and the current lack of uniformity, GCS argues there is a split of authority on whether the TCPA applies to debt collection calls. GCS cites various cases meant to show that some courts exempt debt collectors from the TCPA. (Doc. 21 at 15.) But the issue is not so simple. As shown above, there are clear exemptions for autodialed debt-collection calls to residential landlines, but not for autodialed debt-collections calls to cell phones. All of GCS’s cases purporting to show a debt-collector exemption concern the landline provisions of the TCPA. But those cases are not directly relevant to the facts of this case, since Beiler complains of autodialed calls made to her cell phones. (Compl.¶ 25.) As to any debt-collection exemption, GCS has failed to show a need to refer this case at this time because of the FCC’s expertise or the need for uniformity. 2. Defining ATDS. The TCPA defines the term “automatic telephone dialing system” as equipment having “the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). GCS argues for a referral to the FCC to determine whether “ ‘predictive dialing’ is automatically an ATDS” and whether dialing equipment must have the “current capacity” rather than the “theoretical capacity” to dial random or sequential numbers to be deemed an ATDS. (Doc. 21 at 2, 11.) GCS correctly argues that YouMail and ACA International have petitioned the FCC for rulemaking on these issues. Other similar petitions may also be pending. See, e.g., Trainor v.. Citibank, Nat. Ass’n, No. CIV. 14–62 PAM/JSM, 2014 WL 2574527, at * 2 (D. Minn. June 9, 2014). ¶ Yet, as Beiler points out, the FCC has recently affirmed its prior decisions, concluding against ACA International that “a predictive dialer constitutes an automatic telephone dialing system and is subject to the TCPA’s restrictions on the use of autodialers.” 2008 TCPA Ruling, 23 F.C.C. Rcd. at 566. Moreover, in another case, where a district court issued a stay on these issues, the FCC responded to the court’s request for a status report on the pending petitions. Counsel for the FCC reported to the court that it is not “in a position to predict when the Commission will vote to approve a final order” on the pending petitions. (Doc. 31–1 at 5.) Essentially, GCS’s motion to refer this case invites an extended delay as to when, if ever, the FCC will overturn its own rules. See Trainor, 2014 WL 2574527, at *2 (“It may be that the FCC is poised to overturn its prior decisions, but given that this issue has been pending before the FCC for more than four years, when that new decision will issue is anyone’s guess.”). A referral to the FCC on the predictive dialing issue, therefore, would be too speculative. ¶ A referral on the capacity issue would be similarly fruitless. As another court explained on a similar motion to stay, “A district court is suited to resolve issues of statutory interpretation of the … term “capacity.” While the doctrine of primary jurisdiction may be invoked in cases involving statutory interpretation, such situations typically involve resolution of an issue of first impression, or of a particularly complicated issue best resolved by the administrative agency. Interpretation of these statutory terms do not require the FCC’s policy expertise or specialized knowledge and are matters safely within the conventional experience of judges. Indeed, courts and the FCC have interpreted these statutory terms in the past.” Pimental v. Google, Inc., No. C–11–02585–YGR, 2012 WL 1458179, at *3 (N.D.Cal. Apr. 26, 2012) (citations omitted). ¶ Finally, in regard to both of these sub-issues, it is worth noting that, even if the FCC’s expertise could be helpful and a need for uniformity exists that only the FCC can provide, neither issue may end up mattering in this case. Although Beiler has alleged that GCS autodialed her cell phone (Compl.¶¶ 27, 30), GCS denies having used an ATDS to call her (Am. Answer ¶¶ 27, 30). GCS has also pled in the alternative that, even if it used an ATDS to call Beiler’s cell phones, “all calls were made with prior express consent.” ( Id. at 7.) Discovery may show whether GCS used an ATDS to call Beiler. If discovery shows that GCS did not use an ATDS, however defined, then a referral would have accomplished nothing but unnecessary delay. If discovery shows that GCS did use an ATDS, then a referral would not have been dispositive because GCS may still show “prior express consent.” Either way, a referral to the FCC clarifying the definition of an ATDS is unwarranted at this stage. 3. Wrong Number Exemption. Finally, GCS seeks a referral for the FCC to determine “whether ‘wrong number’ non-telemarketing calls can give rise to a violation of the TCPA.” (Doc. 21 at 3.) But GCS makes no effort to substantiate this request. The ACA International petition does not present this question directly, but seeks a safe harbor for such wrong-number calls. GCS fails to show that the current law is unclear on this question or that the FCC would even have the statutory authority to create the type of safe-harbor sought by ACA International. Therefore, GCS has not carried its burden of showing that a referral of this question to the FCC would aid the resolution of this case.