In Meyer v. Bebe Stores, Inc., 2015 WL 1223658 (N.D.Cal. 2015), Judge Rodgers declined to stay a TCPA text message class action under the Primary Jurisdiction Doctrine.

Generally, plaintiff alleges she provided her cell phone number at a Bebe retail location in connection with a return/purchase transaction in December 2013– receiving no notice that it would be used for advertising purposes–and thereafter received the following text message:  2 From: 423–23  bebe: Get on the list! Reply YES to confirm opt-in. 10% OFF reg-price in-store/online. Restrictions apply. 2msg/mo, w/latest offers. Msg & data rates may apply.  ( Id.) Plaintiff seeks to represent a class of persons within the U.S. who purportedly received calls or messages from defendant or its agents in violation of the TCPA. (FAC ¶¶ 27–39.) According to Bebe, Air2Web, Inc. (“Air2Web”) was its “sole service provider for its text messaging program” between April 2007 and December 2013. (Declaration of Erik Lautier in Support of Motion to Stay Litigation [Dkt. No. 56–2 (“Lautier Dec.”) ], ¶ 4.)

The District Court declined to stay the case.

The Court finds that a stay is not appropriate under the doctrine of primary jurisdiction.  First, judges are well-suited to resolve questions of statutory interpretation. Indeed, the question of whether a particular system constitutes an ATDS has been tackled by many courts, including the Ninth Circuit. See, e.g., Satterfield, 569 F.3d at 951 (finding the focus must be on equipment’s capacity to store, produce, or call randomly or sequentially generated telephone numbers, not on whether it was actually used in that manner). Courts have also addressed issues of vicarious liability in the TCPA context. See, e.g., Gomez v. Campbell–Ewald Co., 768 F.3d 871, 877–78 (9th Cir.2014). Thus, the Court is not persuaded that the FCC, in answering the Sensia Petition, will ultimately reach an issue of first impression. Accordingly, this factor does not favor issuance of a stay.  Second, the issue is not particularly within the FCC’s discretion. As noted above, courts have frequently addressed whether a particular system constitutes an ATDS under the TCPA. Furthermore, Congress specifically defined “automatic telephone dialing system” within the statute, as opposed to delegating the task of proscribing the use of certain equipment to the FCC. Cf. 47 U.S.C. § 227(b)(2)(C) (specifically delegating authority to the FCC to exempt certain calls to cellular telephones from the scope of the TCPA); Clark, 523 F.3d at 1115 (noting “Congress has specifically delegated responsibility to the FCC to define ‘slamming’ violations”). Thus, this factor also does not weigh in favor of a stay.   Third, denial of a stay here does not create a substantial risk of inconsistent rulings, where the petition at issue involves a different set of corporations (other than Air2Web) operating under different circumstances. Thus, for the reasons noted above, any action by the FCC in connection with the Sensia Petition may ultimately have limited applicability–if any–to the present dispute. The FCC’s potential ruling regarding whether a particular configuration of equipment between Sensia, Textmunications, and Air2Web constituted an ATDS may or may not have any bearing on the present litigation, depending on the scope of the FCC’s findings and necessary factual determinations in this action. Moreover, if the FCC responds to the petition in a timely fashion, the Court will likely be able to consider the FCC’s views prior to issuing a ruling on summary judgment or proceeding to trial even in the absence of a stay. Indeed, defendant admits “this action is in its infancy.” (Mot. at 2.)  Finally, the Court finds that the importance of expeditiously resolving a case cuts against issuing a stay where, as here, the timeline for a ruling from the FCC is uncertain and such a ruling–potentially involving substantially different circumstances–may ultimately be of little utility to the Court in adjudicating the present dispute. See Jordan v. Nationstar Mortgage LLC, No. 14–cv–00787–WHO, 2014 WL 5359000, at *12 (N.D.Cal. Oct. 20, 2014) (“[A]waiting a ruling by the FCC would likely involve substantial delay, and … a ruling on the pending petitions would not be dispositive on the outcome of the litigation.”).