In Hofer v. Synchrony Bank, 2015 WL 2374696, at *2-4 (E.D. Mo. 2015), Judge Perry declined to stay a TCPA case based on the Primary Jurisdiction Doctrine. The Court found that the question of whether an ATDS was used did not justify staying the Action.
The FCC has already considered the first question proffered by Synchrony at least twice. See Prater v. Medicredit Inc., 46 F.Supp.3d 1038, 1042 (E.D.Mo.2014) (citing Swope v. Credit Mgmt., L.P., 2013 WL 607830, at *4 (E.D.Mo. Feb. 19, 2013)); see also In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14,014, 14,090–93 (July 3, 2003) (declining to exclude from the TCPA dialers that operate from lists of numbers); In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 566–67 (Jan. 4, 2008) (rejecting argument that dialer meets definition “only when it randomly or sequentially generates telephone numbers, not when it dials numbers from telephone lists”). Both times, it has held that predictive dialers are considered automatic telephone dialing systems subject to the TCPA because of their ability to dial stored numbers automatically. The interests of consistency and uniformity are better served by allowing this case to proceed based on the prior interpretations of the FCC that have been consistently applied by the courts, rather than postponing this case for an indefinite amount of time because the possibility that the FCC may decide to reconsider its past position.
The court also found that the question of “called party” did not justify staying the Action either.
As with the definition of automatic telephone dialing system, this court has previously rejected the second argument regarding “called party” as a reason for granting a motion to stay in favor of a determination by the FCC. See, e.g., Prater, 45 F.Supp. at 1040, 1043 (rejecting as basis for stay pending FCC question of whether “called party … attaches to the cellular phone number or the actual recipient”).3 Although it cites several additional cases from district courts outside the Eighth Circuit,4 Synchrony provides no basis for abandoning this court’s own precedent. Moreover, at least one of the cases cited by Synchrony has not been followed within its own district. See, e.g ., Molnar v. NCO Fin. Sys., Inc., No. 13–CV–00131–BAS JLB, 2015 WL 1906346, at *6 (S.D.Cal. Apr. 20, 2015) (declining to follow Gusman, 2014 WL 2115472, in part because no FCC clarification had issued in the intervening fourteen months). Synchrony argues that this case requires the court in the first instance to determine what “called party” means under the TCPA, because “called party” is part of the proposed class definition. However, “called party” is referenced within the TCPA as an affirmative defense. See Swope v. Credit Mgmt., LP, No. 4:12CV832 CDP, 2013 WL 607830, at *2 (E.D.Mo. Feb. 19, 2013). The definition of called party does not stand as a barrier to proceeding through the class certification stage of this action. Nor does the particular subject matter extend beyond the conventional experience of judges, who frequently are called to construe regulations. Although the FCC has been delegated the task of interpreting and implementing the TCPA’s provisions, see Swope, 2014 WL 607830 at *5, at least one Court of Appeals has already addressed this very issue and held that the “called party” exception in § 227(b)(1) requires the consent of the “person subscribing to the called number at the time the call is made.” Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 643 (7th Cir.2012). While a stay of this matter pending direction by the FCC might promote consistency and uniformity within the regulated field or otherwise clarify existing law, Synchrony has not provided any reason to believe that a decision by the FCC on this issue is forthcoming. At least one of the petitions cited by Synchrony has been pending before the FCC since January 2014. See ECF No. 15–6. Additionally, the Soppet decision has been the law of the Seventh Circuit since May 2012, see generally 679 F.3d 637, and that decision has not been addressed by the FCC. It appears that any ruling by the FCC would come only after a lengthy delay. Such a delay would prejudice Hofer as well as potential class members. Cf. Trainor v. Citibank, Nat’l Ass’n, No. CIV. 14–62 PAM/JSM, 2014 WL 2574527, at *2 (D. Minn. June 9, 2014) (noting that petition had been before the FCC for more than four years).