In Hoagland v. Axos Bank, No. 19-cv-00750-BAS-JLB, 2020 U.S. Dist. LEXIS 20543, at *9 (S.D. Cal. Feb. 6, 2020), Judge Bashant declined to stay a TCPA case while the FCC considers what an ATDS is.

Defendant argues the case should be stayed while the FCC considers promulgating regulations further defining an ATDS and determining the proper approach to calls made to a phone number previously assigned to a person who had given consent but since reassigned to another nonconsenting person.  The TCPA vests the FCC with the responsibility to promulgate regulations implementing the TCPA. ACA Int’l v. Fed. Comm’c Comm’n, 885 F.3d 687, 693, 435 U.S. App. D.C. 1 (D.C. Cir. 2018). In keeping with this power, in 2015, the FCC clarified what devices qualify as ATDS. Id. at 693-694. The Commission also promulgated regulations as to whether the TCPA is violated when a call is made to a consenting number that has been reassigned to a nonconsenting party. Under the Hobbs Act, these regulations [*10]  were subject to review by the District Court for the District of Columbia. See Marks, 904 F.3d at 1049.  In ACA International, the D.C. Circuit set aside the FCC’s efforts to clarify the types of calling equipment that qualify as an ATDS as “unreasonably expansive.” 885 F.3d at 692. The court also vacated the agency’s approach to reassigned numbers as “arbitrary and capricious.” Id. Thus, the Ninth Circuit properly went back to the statute anew to determine the definition of an ATDS. See Marks, 904 F.3d at 1050.  Defendant would have this Court stay these proceedings while the FCC considers promulgating new regulations. Even assuming the FCC did issue new rulings, these rulings would once again be subject to review under the Hobbs Act. Frankly, both parties would be damaged by this approach. There is no time limit as to when or whether the FCC will promulgate such regulations or when or whether the courts will then review these newly promulgated regulations. Thus, the stay could be an indefinite one, leading to a loss of evidence and memories and miscarriage of justice for all involved.  Furthermore, it is not clear to the court that the promulgation of regulations, if they occurred, would simplify or save judicial resources. First, the Ninth Circuit [*11]  has clearly ruled on the definition of an ATDS. This Court is bound by that ruling, even when faced with a possible contradictory regulation. Second, the possibility of a contradictory regulation is so speculative that it does not warrant the stay. Finally, it is not at all clear that any regulation dealing with nonconsenting parties would be applicable to this case. The FCC has primarily focused on reassigned numbers as opposed to numbers simply called in error. It is unclear at this stage of the proceedings that any regulation would even be applicable to this case.  Ultimately, the fact that there is no clear timeline, and, in fact, there may not be new regulations promulgated by the FCC in the near future, leads the court to conclude that a stay at this stage would be inappropriate.