In Gusman v. Comcast Corp., 2014 WL 2115472 (S.D.Cal. 2014), Judge Curiel stayed a TCPA reassigned number case based on the FCC’s primary jurisdiction.
Recently, district courts have stayed cases concerning this particular issue of whether liability attaches for calls placed to reassigned telephone numbers based on these petitions before the FCC. Fontes v. Time Warner Cable Inc., No. 2:14cv2060–CAS(CWx), Dkt. No. 23 (C.D.Cal. May 19, 2014) (declining to address whether action should be stayed under the primary jurisdiction doctrine but staying action on its own motion for 120 days pursuant to its inherent power to control its docket); Barrera v. Comcast Holdings Corp., Case No. 14cv00343–THE, 2014 WL 1942829 (N.D.Cal. May 12, 2014); Matlock v. United Healthcare, No. 2:13cv2206–MCE–EFB, 2014 WL 1155541, at *1 (E.D.Cal. Mar.20, 2014); Henrichs v. Wells Fargo Bank, NA, No. 3:13cv5434–WHA, Dkt. No. 56 at 2–3 (N.D.Cal. Apr. 15, 2014). ¶ In a notice of supplemental authority, Plaintiff cites to Meyer v. Receivables Performance Mgmt., LLC, No. C12–2013RAJ, 2014 WL 1744284, at *1–2 (W.D.Wash. Apr.30, 2014), where a district court denied a motion to stay despite a pending rulemaking petition and four declaratory relief petitions. However, that case is distinguishable. First, Meyer did not address liability for calls placed to reassigned or recycled cellular telephone numbers where the consent was granted by the previous telephone call owner but concerned which devices or technologies are auto-dialers within the meaning of the TCPA. Moreover, the court expressed concern that any rulings from the FCC is discretionary and stated that the court “will not stay this case while it awaits rulings that may never come.” Id. at *2. However, in the instant case, the public comment periods have passed and unlike Meyer, there is an indication by an FCC Commissioner that this is an issue of importance where guidance is needed and that the FCC should work on resolving this issue without delay. (See Dkt. No. 48–2, D’s RJN, Ex. E.) ¶ Plaintiff also contends that he will be prejudiced due to passage of time as any FCC rulings regarding the TCPA are applied prospectively, not retroactively. Defendant disagrees. ¶ Administrative rules will not have retroactive effect unless Congress authorized the administrative agency and the language of the regulations require it. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). However, a clarification of a regulation does not raise issues about retroactivity. Clay v. Johnson, 264 F.3d 744, 749 (7th Cir.2001) (stating that a clarifying rule “can be applied to the case at hand just as a judicial determination construing a statute can be applied to the case at hand,” and does not raise issues of retroactivity). ¶ Here, both petitions seek to “clarify” the regulations. In United Healthcare, Petitioner seeks to “clarify the applicability of the … [ TCPA] and the Com-mission’s TCPA rules to informational, non-telemarketing autodialed and prerecorded calls to wireless numbers for which valid prior express consent has been obtained but which, unbeknownst to the calling party, have subsequently been reassigned from one wireless subscriber to another.” (Dkt. No. 34–4, D’s RJN, Ex. A at 7) (emphasis added.) ACA also sought to “clarify that prior express consent attaches to the person incurring a debt, and not the specific telephone number provided by the debtor at the time a debt was incurred….” (Id. at 21–22) (emphasis added). Therefore, any clarifications made by the FCC may be applied retroactively. Moreover, Plaintiff will not be prejudiced since he stopped receiving calls in the Fall of 2013 and the case is in the early stages of litigation. Accordingly, Plaintiff’s argument is without merit. ¶ Based on the Syntek factors, the Court concludes that a stay is warranted under the primary jurisdiction doctrine.