In Story v. Mammoth Mountain Ski Area, LLC, 2015 WL 2339437 (E.D. Cal. 2015), Judge Mendez applied the Primary Jurisdiction Doctrine to stay a TCPA class action arising out of a ski-resort purportedly leaving pre-recorded advertisements on the putative class members’ cellular telephones.

In 2012, the FCC issued a Report and Order entitled “In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991.” 27 F.C.C.R. 1830 (F.C.C. Feb. 15, 2012) (effective October 16, 2013) (“the 2013 rule change”). In it, the FCC initially noted that “the TCPA is silent on the issue of what form of express consent—oral, written, or some other kind—is required for calls that use an automatic telephone dialing system or prerecorded voice to deliver a telemarketing message.” 27 F.C.C.R. 1830, 1838 ¶ 21. The FCC concluded that it had “discretion to determine, consistent with Congressional intent, the form of express consent required.” Id. The FCC then stated that, based on the volume of consumer complaints, statutory goals, and substantial support in the record, the form of “express consent” required under § 227(b)(1) would thereafter be “prior express written consent” that is signed and is “sufficient to show that the consumer: (1) received ‘clear and conspicuous disclosure’ of the consequences of providing the requested consent …; and (2) having received this information, agrees unambiguously to receive such calls at a telephone number the consumer designates. 27 F.C.C.R. 1830, 1837 ¶ 18, 1838 ¶ 20, 1844 ¶ 33.   Defendant contends “prior express consent,” as interpreted prior to the 2013 rule change, was given by Plaintiff, not through the privacy policy on Defendant’s website, but through his provision of his phone number to Defendant. Reply at pp. 7–8. Prior pronouncements from the FCC support Defendant’s contention that Plaintiff’s provision of his number to Defendant satisfied the “prior express consent” requirements of § 227 prior to the 2013 rule change. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8769 ¶ 31 (1992) (“persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary”); Baird v. Sabre Inc., 995 F.Supp.2d 1100, 1106 (C.D.Cal.2014); Olney v., Inc., No. 1:12–CV–01724–LJO, 2014 WL 1747674, at *4–5 (E.D.Cal.2014).  To determine whether Defendant violated the TCPA, the Court will have to decide whether Defendant procured proper consent before allegedly making the calls to Plaintiff. This will ultimately entail an analysis of exactly what effect the 2013 rule change had on the preexisting agreement or relationship between these parties.  Defendant argues that several petitions filed with the FCC are relevant to this critical issue, and, therefore, the Court should stay the matter under the primary jurisdiction doctrine. The Coalition of Mobile Engagement Providers (“CMEP”) filed a petition (Doc. # 17–7) with the FCC in October of 2013 seeking clarification that valid written consent obtained prior to the 2013 rule change is effective after the rule change and that renewing consent is not required. The Direct Marketing Association (“DMA”) filed its own petition (Doc. # 17–9) the following year requesting the FCC forbear from enforcing new disclosure standards for previously existing written consent agreements and seeking clarification that previously obtained written consent is valid.  Plaintiff does not contest that issues regarding the activity underlying his claim have been “placed by Congress within the jurisdiction of an administrative body having regulatory authority” (the FCC), or that interpretation of the TCPA requires expertise or uniformity in administration. General Dynamics Corp., 828 F.2d at 1362. In opposing this motion to stay, he argues that there is no issue that will affect this case to be resolved by the FCC. Plaintiff contends the CMEP and DMA petitions concern the ongoing validity of written consents, which Defendant never received from Plaintiff, and that even if relief is granted by the FCC in response to those petitions, it can only be implemented on a prospective basis, providing no support to Defendant in the current action. Opp. at pp. 1–2.  The 2013 rule change included a sunset provision that allowed previously obtained consent to continue to suffice for an approximately twelve-month period, but specifically stated that once the new “written consent rules become effective, however, an entity will no longer be able to rely on non-written forms of express consent to make autodialed or prerecorded voice telemarketing calls, and thus could be liable for making such calls absent prior written consent.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 1857 ¶ 68 (2012).  As an initial matter, the Court does not find support for the proposition that Plaintiff’s provision of his phone number to Defendant constituted written consent. In addressing the CMEP and DMA petitions, the FCC may very well conclude that written consents obtained before the rule change may continue to be effective, however, this will not necessarily affect the viability of Plaintiff’s claim in this action. This would clearly undermine Defendant’s position that the Court should exercise its discretion to stay the case under the primary jurisdiction doctrine.    However, as discussed in its reply, Defendant has filed its own petition (Doc. # 34–2) with the FCC, which Defendant contends renders Plaintiff’s arguments moot. In his surreply (Doc. # 42), Plaintiff contends Defendant’s petition raises no issue that needs to first be resolved by the FCC. Surreply at pp. 1–2. Plaintiff argues that although the petition is disguised as one seeking clarification, it is really an improper challenge to the validity of the FCC’s prior rulemaking and that Defendant’s contentions therein are frivolous.    The Court finds Defendant’s petition directly addresses the primary issue before the Court as it seeks “a ruling that ‘prior express consent’ under [the TCPA] includes all consents obtained prior to October 16, 2013 where the consumer has provided their telephone number to the advertiser and the advertiser has a contractual right to contact the consumer at that number.” Defendant’s Petition at p. 1. The FCC’s ruling on this petition will very likely address, to some extent, the merit of Plaintiff’s claim. Therefore, the FCC’s anticipated ruling on Defendant’s petition may conflict with, and thereby undermine, the decision of this Court unless a stay is issued.  The comment period for Defendant’s petition will close soon and there is no evidence that Defendant continues to make these calls, so Plaintiff will likely suffer no further damages. The Court thus finds it appropriate under these circumstances to exercise its discretion pursuant to the primary jurisdiction doctrine and stay the current matter because the issues are better resolved “within the special competence of an administrative agency.” Clark v. Time Warner Cable, 523 F.3d at 1114. Defendant’s motion to stay is GRANTED.