In Errington v. Time Warner Cable Inc., 2016 WL 2930696, at *3-4 (C.D.Cal., 2016), Judge Lew stayed a TCPA case pending the outcome of the ACA proceedings, but did not want to wait and see what the 9th Circuit did with Spokeo on remand. Defendant placed calls to Plaintiff’s number in an attempt to collect a debt that belonged to the Debtor, as the phone number the Debtor provided to Defendant was the same as Plaintiff’s phone number. Plaintiff alleges the calls were placed using an automatic telephone dialing system (“ATDS”) and/or by using an artificial or prerecorded voice (“Robocalls”). During a live conversation, Plaintiff informed Defendant that it was calling the wrong number. Defendant allegedly continued calling Plaintiff using an ATDS and/or Robocalls, but has since ceased.
While Spokeo involves claims under the FCRA, the constitutional question extends to the TCPA. If the Supreme Court were to answer the certified question in Spokeo in the negative, TCPA plaintiffs who have not suffered any concrete harm as a result of a defendant’s violation of the TCPA would have no standing to sue. See Eric B. Fromer Chiropractic, Inc. v. New York Life Ins. & Annuity Corp., No. 15-cv-04767-AB, 2015 WL 6579779, at *2 (C.D. Cal. Oct. 19, 2015); see also Chattanond, No. 2:15-cv-09549-RSWL-JC. The Supreme Court’s ruling in Spokeo was expected to resolve whether a plaintiff can rely on a bare statutory violation to establish Article III standing, or whether allegations of actual damage are required. However, the Supreme Court handed down its decision in Spokeo on May 16, 2016, and in doing so, declined to decide the key standing issue. See Spokeo, Inc. v. Robins, No. 12-1339, 2016 WL 2842447 (S. Ct. 2016). Rather, the Court threw out the Ninth Circuit’s ruling in favour of the plaintiffs, reasoning that the Ninth Circuit’s standing analysis was “incomplete.” Id. at * 1. Justice Alito, writing on behalf of the majority, noted that the Court took “no position on the correctness of the Ninth Circuit’s ultimate conclusion.” Id. at *2. The Ninth Circuit’s ruling was vacated and remanded for further analysis of the standing issue. Consequently, this Court cannot speculate as to when the standing issue in Spokeo will be resolved, or whether the issue will be resolved with such expedience sufficient to warrant a stay. For this reason, the Court declines to grant Defendant’s Motion to Stay the action pending resolution of the standing issue in Spokeo. b. A Stay is Warranted Pending the D.C. Circuit’s Decision in ACA. The following two appeals are before the D.C. Circuit: (1) ACA Int’l v. Fed. Commc’ns Comm’n, Appeal No. 15-1211 (D.C. Circuit) (filed on Oct. 13, 2015), and (2) Chamber of Commerce v. Fed. Commc’ns Comm’n, Appeal No. 15-1306 (D.C. Circuit) (filed on Sept. 2, 2015). The D.C. Circuit consolidated Appeal No. 15-1306, and others, with Appeal No. 15-1211 for resolution in ACA. The Court should find that a stay is warranted pending the D.C. Circuit’s decision in ACA. In ACA, the D.C. Circuit will address, among other things, what type of equipment constitutes an “ATDS.” Under the TCPA, an “ATDS” is equipment “which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). On appeal is the Federal Communications Commissions’ (“FCC”) finding that a piece of equipment has sufficient capacity to qualify as an ATDS if it has the present or “potential” capacity to store or produce numbers to be called using a random generator, but not if it only has the “theoretical” capacity. See In re Rules & Regulatiosn Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd 7961 (2015) (“July 2015 Ruling”). The July 2015 Ruling does not clarify the difference between “potential” and “theoretical” capacity. The D.C. Circuit will determine whether the FCC’s treatment of the term “capacity” in defining ATDS is “arbitrary, capricious, [or] an abuse of discretion,” and thus results in an approach that does not comport with the caller’s constitutional rights of due process and freedom of speech, and that disregards the applicable statute. Def.’s Req. for Judicial Notice Ex. A, ECF No. 21-3. Because Plaintiff must prove that Defendant called him using an ATDS in order to establish a TCPA claim, the definition of an ATDS is directly implicated in this litigation. See Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (“The three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system [ATDS]; (3) without the recipient’s prior express consent.”). The Court notes that the final briefing in Appeal No. 15-1211 was completed on February 24, 2016. Def.’s Req. for Judicial Notice Ex. A. Accordingly, the appeal before the D.C. Circuit is not likely to remain pending for an extended period of time, and the possible prejudice to Plaintiff is minimal. Additionally, hardship to Defendant and considerations of judicial economy weigh in favor of a stay. If the case is not stayed, Defendant may suffer hardship in conducting discovery and trial preparation in light of the uncertain difference between “potential” capacity and “theoretical” capacity under the definition of an ATDS. Lastly, granting a stay may simplify the issues in this case and conserve judicial resources. Any Order by this Court which is issued in reliance on the July 2015 Ruling will be called into question if the D.C. Circuit overturns the July 2015 Ruling. Accordingly, the Court and both parties will benefit from a clarification of the applicable law. See Provo, 2015 WL 6144029, at *1.