In Higgingbotham v. Hollins, 2014 WL 2865730 (D.Kan. 2014), Judge James stayed another TCPA case based on the primary jurisdiction of the FCC.
Plaintiff alleges that Defendant contacted her on her cellular telephone, using a prerecorded voice message, in an attempt to collect on an alleged debt from someone other than Plaintiff. Plaintiff further alleges that she did not consent to Defendant contacting her via cellular telephone using a prerecorded voice or that such consent had been revoked. Defendant’s conduct allegedly violated the TCPA, which makes it “unlawful for any person within the United States … to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a cellular telephone service.” Plaintiff asserts that she represents and is a member of a class which she defines as all persons in the United States to whose cellular telephone number Defendant placed a non-emergency telephone call using an artificial or prerecorded voice within four years of the complaint, where Defendant did not have express consent to call the number. Plaintiff does not allege that Defendant placed randomly dialed, advertising, or telemarketing calls. Defendant asserts that the telephone call Plaintiff describes is one that Defendant placed to Tanya Beck about a debt Ms. Beck owed. Ms. Beck had provided the telephone number to the creditor and had given the creditor permission to call her. The creditor, in turn, provided Ms. Beck’s number to Defendant. Without the creditor or Defendant’s knowledge, Ms. Beck’s cellular telephone service provider later assigned the number to Plaintiff. The dispute in this case turns, in large part, on (1) whether the TCPA applies to non-telemarketing (i.e. debt collecting) calls to cell phones, and (2) whether the “prior express consent of the called party” refers to the party the caller intended to reach or the actual recipient of the call. The parties disagree as to the state of the law on these two issues, but they agree that both require an interpretation of the TCPA. Congress enacted the TCPA in 1991 “in an effort to address a growing number of telephone marketing calls and certain telemarketing practices Congress found to be an invasion of consumer privacy.” Since its enactment, however, litigants have tested the law’s reach in offering consumers protection from debt-collecting practices that fall within TCPA’s forbidden conduct (and bring damages in private causes of action). Although some courts have opined on issues relating to the definitions and scope of “called party” and “prior express consent,” others have stayed cases under the primary jurisdiction doctrine pending FCC rulings on petitions which raise these issues to promote clarity and uniformity in interpretation. ¶ . . . This issue has recently been addressed and decided in this District. Magistrate Judge James P. O’Hara ordered a stay in Higgenbotham v. Diversified Consultants, Inc., No. 2:13–cv02624–JTM–JPO, which also alleges violations of the TCPA by attempting to collect an alleged debt owed by someone other than Plaintiff.FN15 For the reasons stated in Judge O’Hara’s order, the Court determines that a stay of this action is appropriate until the FCC proceedings are resolved. [FN15. See Higgenbotham v. Diversified Consultants, Inc., No. 2:13–cv–02624–JTM–JPO, ECF No. 22 (filed May 14, 2014).]