In Lambert v. Buth–Na–Bodhaige, Inc., 2014 WL 4187250 (E.D.Cal. 2014), Chief Judge England stayed a TCPA case under the Primary Jurisdiction Doctrine.
However, as demonstrated by the Coalition of Mobile Engagement Providers’ (“CMEP”) petition now pending before the FCC, ECF No. 12–2, Exh. 5), “express consent” provided by a customer prior to October 16, 2013, could obviate the need to again obtain consent under the new regulations. Indeed, the FCC understands CMEP’s petition as seeking clarification that the new rules (1) do not “nullify those written express consents already provided by customers” before October 16, 2013, and (2) “are applicable only to new customers and therefore mobile marketers need not take additional steps to obtain the revised forms of written consent from existing customers who have already provided express written consent under the previous rules that does not meet the standards of the revised rules.” ECF No. 12–2, Exh. 6. If the FCC clarifies that a customer’s pre-October 16, 2013, express consent covers post-October 16, 2013, communications, Plaintiff’s claim could be materially affected. Accordingly, a stay is warranted. Moreover, because there is no indication that Plaintiff has received any text messages from Defendants since October 18, 2013, she is not suffering continuing harm and thus will not be prejudiced by a stay.¶ In short, the Court finds that a stay is warranted because: (1) at least one petition that may affect Plaintiff’s claim in this case is already before the FCC and the comment period has expired; (2) judicial economy weighs against issuing any decisions that may be undermined by anticipated rulings by the FCC; (3) the violations alleged by Plaintiff are not ongoing—indeed, the only alleged violations occurred over ten months ago—so Plaintiff will not suffer further damages during the pendency of a stay; and (4) this case is in the earliest stage of litigation, such that Plaintiff will not be prejudiced by any delay and all parties will be spared the costs of discovery that could be rendered moot by FCC rulings. Defendants’ Motion is GRANTED.