In Simon v. Healthways Inc, 2015 WL 1568230 (C.D.Cal. 2015), Judge O’Connell refused to stay a TCPA blast-fax class action based on the Primary Jurisdiction Doctrine.

To begin. Defendants argue that the Court should stay these proceedings in accordance with the primary jurisdiction doctrine due to the FCC’s recent clarification that solicited faxes must provide opt-out notice. The primary jurisdiction doctrine allows courts to stay proceedings when the court determines that a claim implicates technical and policy questions that should first be addressed by the appropriate regulatory authority. Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir.2008). The doctrine is not intended to enable courts to “secure expert advice,” but should only be used if a claim “requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency, and if protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme.” Id. (internal citations and quotation marks omitted). . . .First, although the FCC has the authority to define “prior express permission” or “prior express invitation,” this is not an issue of first impression. In fact, the FCC has previously examined this term. . . Second, this is not an issue that requires technical expertise beyond the Court’s conventional experience. Indeed, following the FCC’s recent decision, multiple courts have concluded that disputes over prior express permission are appropriate for judicial resolution. See, e.g., Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC, No. 12–22330–CIV, 2014 WL 7366255, at *2–3 (S.D.Fla. Dec. 24, 2014) (certifying class despite indication that defendant would seek a waiver because defendant had presented no evidence of prior express permission); True Health Chiropractic Inc. v. McKesson Corp., No. 13–cv–02219–JST, 2014 WL 6707594, at *2 (N.D.Cal. Nov. 25, 2014) (holding that resolution of whether the named plaintiffs provided consent to receive faxes from the defendants is a factual issue that requires litigation, not a stay); Around the World Travel, Inc. v. Unique Vacations, Inc., No. 14–cv–12589, 2014 WL 6606953, at *3 (E.D.Mich. Nov. 19, 2014) (considering the primary jurisdiction doctrine and finding that continuing with the litigation and discovery were more appropriate even though the parties disputed the issue of prior express permission).  Finally, this is not the type of claim that requires uniformity of administration or the need to establish a national rule. To the contrary, the FCC recognized in its decision that waiver requests must be determined on a case-by-case basis. (See Dkt. No. 36 at 19 n. 102 (“[W]e note that all future waiver requests will be adjudicated on a case-by-case basis and do not prejudge the outcome of future waiver requests in this Order.”).). While the Court acknowledges the potential for inconsistent rulings between the FCC and this Court, this action is in its infancy; there is no basis to believe that after discovery on this issue there will remain a substantial risk of inconsistent rulings. Accordingly, the Court finds application of the doctrine of primary jurisdiction to be inappropriate in this case.