In Couser v. Pre-paid Legal Services, Inc., 2014 WL 197717 (S.D.Cal. 2014), Judge Burns found that a TCPA Class Action Plaintiff might state a claim against an alleged agent hired by the Defendant to promote its business, but suggested that the case might be proper for a stay under the Primary Jurisdiction doctrine.

This is a Telephone Communications Protection Act case in which Couser accuses Defendants of making approximately 40 unsolicited and prerecorded calls to her cell phone. Now before the Court is CallFire’s motion to dismiss. CallFire’s basic argument is that it’s an “intermediate software provider” that doesn’t itself control the content, destination, or timing of calls, and therefore can’t be liable under the TCPA. The implication of this, of course, is that if there are culprits in this case, they are Legal Shield and Frick. ¶  This isn’t a complex case. Legal Shield is a company that provides plans, or contracts, for legal services. CallFire is a company that provides software enabling its customer companies to send voice messages to a wide audience. That’s the Court’s description of CallFire, at least. Couser says it “provides voice and text connectivity”; CallFire more or less accepts that and says it “provides its customers various web-based applications that integrate communications services and other software services whereby its customers can utilize CallFire’s software platform to develop and send their own voice broadcasts to recipients of the customers’ choosing.” (FAC ¶ 16; Mot. at 1.) Couser has an incentive to maximize CallFire’s responsibility for the calls at issue; CallFire has the opposite incentive. ¶  In any event, Legal Shield used CallFire to promote its business, and Couser alleges that she received approximately 40 unsolicited promotional calls that were made with an automatic telephone dialing system and utilized an artificial or prerecorded voice. (FAC ¶ 30.) This is the most significant allegation:  “Beginning in June 2012, at the express instruction and guidance of Legal Shield, through Legal Shield’s employee and representative, Frick, Defendants began contacting Plaintiff for the purpose of soliciting Plaintiff’s business, on her cellular telephone by way of an “automatic telephone dialing system,” as defined by 47 U.S.C. § 227(a)(1) using an “artificial or prerecorded voice” as prohibited by 47 U.S.C. § 227(b)(1)(A).”  (FAC ¶ 26.) ¶  To be clear—because the relevant TCPA statute contains four distinct prohibitions—Couser is alleging a violation of 47 U.S.C. § 227(b)(1)(A)(iii). (FAC ¶ 26; Opp’n Br. at 2.) This makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone.”

The Court found that CallFire could have placed the call, at least based on how the Plaintiff pleaded it:

CallFire’s next argument is that, as a matter of fact, it isn’t the party that called Couser, and this turns on a rather technical argument about how its service works that is most likely beyond the scope of a motion to dismiss. In any event, the Court is inclined to disagree with it. ¶  CallFire’s motion to dismiss employs rather cagey language to describe its responsibility for the unwanted calls Couser allegedly received. Initially, this language deflects responsibility and places on its customers. For example, customers use CallFire’s “software platform to develop and send their own voice broadcasts.” (Mot. at 1.) CallFire “provides its customers connectivity to transmit their own messages to the recipients they selected and at the time of their choosing.” (Mot. at 2.) The clear implication here is that CallFire just provides software while its customers actually pull the trigger and make telephone calls with that software.  ¶  But CallFire also describes its service in a way that suggests it actually places the calls. For example, its Terms of Service notifies customers, “You represent and warrant that the owners of the phone numbers you provide to CallFire, to which outbound messages and broadcasts are transmitted through the Service….” (Mot. at 2.) It also says, “You further agree that Call-Fire is, under no circumstances, responsible for the contents and/or accuracy of your messages or broadcasts and CallFire will only transmit them….” CallFire argues later in its motion that its role “is akin to a common carrier or software provider that simply receives instructions and transmits based on those instructions without alteration.” (Mot. at 6.) This all gives the impression that CallFire is the caller, or certainly close enough to the caller.  ¶  Whatever the true and exact relationship between CallFire and its customers is, the Court finds it to be too fact-intensive, and certainly too disputed, to be resolved at the motion to dismiss phase in CallFire’s favor. By CallFire’s own words, it receives numbers from its customers and it transmits or delivers a recorded message to those numbers. That essentially makes it a caller, at least by some common-sense definition of the term, even if the customers are the chief architect of the calls.

The Court, however, invited a more factual record as to whether the matter should be stayed under the Primary Jurisdiction doctrine until the FCC decides certain pending petitions:

This brings the Court to CallFire’s final argument, which is that the case should be referred to the FCC under the primary jurisdiction doctrine, especially while it is already considering the TCPA liability of software providers that merely transmit users’ own messages. The primary jurisdiction doctrine applies when “an otherwise cognizable claim implicates technical and policy questions that should be ad-dressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir.2008). It “prescribes deference to an administrative agency where (1) the issue is not within the conventional experience of judges, (2) the issue involves technical or policy considerations within the agency’s particular field of ex-pertise, (3) the issue is particularly within the agency’s discretion, or (4) there exists a substantial danger of inconsistent rulings.”   Maronyan v. Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038, 1048–49 (9th Cir.2011). While CallFire asks the Court to refer this case to the FCC, it may simply be asking the Court to stay this case while the FCC considers the issue at hand. See, e.g., Glauser v. Twilio, 2012 WL 259426 (N.D.Cal. Jan.27, 2012).  ¶  For the reasons CallFire gives in its motion to dismiss, the Court believes the primary jurisdiction doctrine has traction in this case. Not only that, but at least one other district court case has stayed a TCPA case while the FCC considers the question this case presents—the liability of a software provider under the TCPA. See Glauser at *2–3. Couser is right to note that Glauser involves text messages and not prerecorded voice messages, but for the purposes of the TCPA they are essentially the same and are actionable under the very same statutory subdivision that’s at issue in this case. See Hickey v. Voxernet LLC, 887 F .Supp.2d 1125, 1129 (W.D.Wash.2012) (“A text message is a call under the TCPA.”). The Court is somewhat less receptive to Couser’s argument that the plaintiff in Glauser specifically alleged that the de-fendant provided a connectivity application, while her complaint alleges that CallFire actually called Couser. First, as the Court has said above, Couser’s complaint also contains allegations that paint CallFire as a kind of middleman party. But second, the Court presuma-bly does not have to accept all of Couser’s factual allegations as true for the purposes of deciding whether to invoke the primary jurisdiction defense. After all, the consequences of invoking the doctrine aren’t nearly so fatal to Couser’s claims as are the consequences of granting a motion to dismiss. ¶  Most importantly, as CallFire and the Glauser opinion note, the FCC is now considering the liability of so-called common carriers, which is the very issue this case ostensibly presents. See Glauser at *2 (“Similarly, the specific issue whether a text message service provider qualifies as a common carrier exempt from liability pursuant to the TCPA, is also currently under submission before the FC.”). The petition under consideration would essentially extend the FCC’s above-mentioned rulings with respect to facsimiles to companies that send or transmit voice or text messages on behalf of customers. The Court therefore finds that the primary jurisdiction doctrine has great relevance in this case. Nonetheless, whatever the FCC’s ruling is, the question of liability will still turn on facts that are undeveloped here and need to be further developed, namely the precise relationship between CallFire and Legal Shield and the allocation of responsibility between them. That is an issue on which CallFire has attempted to present substantial evidence already, but only in a one-sided manner without the benefit of adversarial discovery. Thus, it seems to the Court that this case should go forward. If, after taking discovery from CallFire and Legal Shield, Couser still believes CallFire is liable under the TCPA, the Court will entertain a renewed motion to stay this case under the primary jurisdiction doctrine, or, assuming the FCC has spoken to the issue by then, a motion for summary judgment.  ¶  The Court reaches this conclusion mindful that the stay order in Glauser came on the pleadings alone, at the motion to dismiss phase, but those pleadings were a bit more precise as to the common carrier’s role and liability: “Specifically, plaintiff alleges that defendants, through their text messaging applications, tools, and/or technology, made unsolicited text calls to plaintiff and other similarly situated, without their prior expressed consent, using an automatic telephone dialer system.” Glauser at *3. It may be that Couser’s is stubbornly sticking to her pleadings just to survive to discovery and increase the cost of this case to CallFire, but that doesn’t change the Court’s view that one way or another CallFire’s precise relationship with Legal Shield, and the nature of its business, must be factually developed if the claims against it are to be either dismissed or stayed. In any event, the discovery the Court imagines Couser needing from CallFire is limited, and should not impose a substantial cost on CallFire. Likewise, any subsequent motion to stay or for summary judgment can largely repeat arguments CallFire has made in its motion to dismiss, and shouldn’t require extensive legal fees.  ¶  CallFire’s motion to dismiss is DENIED. The Court strongly senses that it has the better arguments in this case, but those arguments simply can’t be ratified at the motion to dismiss phase of this case. Likewise, with additional discovery confirming that CallFire’s responsibility for the calls at issue is what it claims, the Court would be inclined to stay this case under the primary jurisdiction doctrine, or, assuming the FCC has spoken to the issue, rule definitively on it with a motion for summary judgment.