In Higgenbotham v. Diversified Consultants, Inc., 2014 WL 1930885 (D.Kan. 2014), Judge O’Hara stayed a TCPA case against a debt collector based on the Primary Jurisdiction Doctrine.

The court finds that the situation in this case fits the purpose of the doctrine. Here is a recap of what we know: (1) Plaintiff alleges that one of the two ways defendant violated the TCPA is by using an ATDS to call her cellular telephone. (2) Defendant disputes that allegation by arguing that the dialing system it used to call plaintiff does not qualify as an ATDS because it does not have the present capacity to store or produce telephone numbers to be called using a random or sequential number generator. (3) The TCPA defines an ATDS as “equipment that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” FN25 (4) Neither the TCPA nor previous FCC orders address the meaning of “capacity,” specifically, whether it should be interpreted broadly to mean potential capacity or narrowly to mean present capacity.  The court agrees with defendant that the statutory reference to “capacity” is unclear. The seminal question of its reach is a technical one, which falls in the ambit of the FCC’s administrative expertise.FN26 How the FCC ultimately defines “capacity” is a matter of administrative discretion. FN27 It is proper for the FCC to make this determination in the first instance, such that uniformity and consistency in the application of the TCPA can be accomplished. Significantly, this very issue is presently pending before the FCC in the Communication Innovators and YouMail petitions. “There is therefore a real possibility that a decision by this court prior to the FCC’s response to the … petition[s] would result in conflicting decisions, either between our court and the FCC or our court and another circuit if the FCC ruling is appealed.” FN28 Because the issue defendant raises is “presently pending before the FCC … the FCC must be allowed to resolve the issue initially under the doctrine of primary jurisdiction.”