In Alvarado v. Bay Area Credit Service, LLC, 2015 WL 224950 (N.D.Cal. 2015), Judge Conti denied a Motion to Stay a TCPA case.

Precisely this issue was recently raised in another case in this District. In Nationstar, Judge Orrick considered whether pending FCC decisions counseled a stay of that matter. One such issue before the FCC was “whether dialing equipment that lacks the current capacity for random or sequential dialing constitutes an ‘automatic telephone dialing system’ (‘ATDS’) as defined by the Telephone Consumer Protection Act….” Id. at *1. Indeed, some of the petitions that Judge Orrick considered are exactly the same ones that BACS identifies here. Compare id. at *5 (identifying FCC petitions from ACA International, YouMail, Professional Association for Customer Engagement, and TextMe), with Mot. at 6–7 (identifying the same petitions). Judge Orrick discussed the primary jurisdiction factors from Maronyan in great detail and determined that primary jurisdiction doctrine was “not warranted” because “[t]he interpretation of ‘capacity’ is within the Ninth Circuit’s experience, does not involve technical expertise, and does not impose a substantial danger of inconsistent rulings.” Nationstar, 2014 WL 5359000, at *8. The Court agrees, and finds that these factors weigh against application of the primary jurisdiction doctrine.   Also important is likelihood that the FCC will rule on the issue soon. If it is probably going to be a long time until the FCC rules, then the prejudice to Ms. Alvarado is likely to be correspondingly greater and the delay caused will be correspondingly longer. As a result, BACS argues repeatedly that an FCC decision is imminent. See Mot. at 7; Reply at 3–4. BACS points out that the Ninth Circuit has held that “a reasonable time for agency action is typically counted in weeks or months, not years.” Reply at 3 (quoting In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C.Cir.2004)). In further support of that claim, BACS cites a court order predicting that a decision on the ATDS petitions was expected “relatively soon.” See Reply at 3 (citing Mendoza v. UnitedHealth Grp. Inc., No. 13–1553 PJH, 2014 WL 722031, at *2 (N.D.Cal. Jan. 6, 2014)). But that order is from January 2014—over a year ago. Some of the petitions that support BACS’ motion are even older: the Glide Talk petition was filed in October 2013, and the YouMail petition was filed in April 2013. See Reply at 5–6. Thus there is no indication that a decision from the FCC is coming any time soon.