District Court (Mo.) Denies TCPA Stay Based on Primary Jurisdiction Because Swope Already Decided the ATDS Issue

In Prater v. Medicredit Inc., — F.Supp.3d —-, 2014 WL 4652942 (E.D.Mo. 2014), Judge Collin refused to stay a TCPA case based on the Primary Jurisdiction Doctrine because Swope already decided the ATDS issue.

[T]o the extent Defendants argue that a stay should be granted because the pending petitions “ask[ ] the FCC to declare that predictive dialers do not fall under the TCPA’s definition of a prohibited ATDS” (Doc. 29 at 2), the court held in Swope, 2013 WL 607830, at *4:   As an initial matter, Credit Management contends that the viability of the plaintiff’s claim is completely dependent on the ruling of the FCC. This is not correct. Plaintiff’s second amended complaint alleges violations of the TCPA through the use of an automatic telephone dialing system and through the use of artificial or prerecorded messages. From the plain text of the statute, each of these violations is independently actionable; plaintiff may recover damages for calls made “using any automatic telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A) (emphasis added). Therefore, even if the primary jurisdiction doctrine should be invoked for the claims related to the automatic telephone dialing system, plaintiff’s claims regarding the use of an artificial or prerecorded voice are appropriately before this court, regardless of the FCC’s decision.   (emphasis in original).  In any case, the FCC has held, on two occasions, that a predictive dialer is an ATDS, and “[b]oth times, it has held that predictive dialers are considered automatic telephone dialing systems subject to the TCPA. Swope, 2013 WL 607830, at *4. Further, the court in Trainor v. Citibank, N.A., 2014 WL 2574527, at *2 (D. Minn. June 9, 2014), noted that the FCC has held that predictive dialers which do not dial random or sequential numbers, but which store or receive numbers from a database, fall within the “ ‘meaning and statutory definition of ‘automatic telephone dialing equipment and the intent of Congress.’ “ (citing In re Rules and Regs. Implementing the Tel. Consumer Protection Act of 1991, 18 FCC Rcd. 14,014, 14,090–93 (July 3, 2003)).  Eighth, although Defendants cite cases from jurisdictions other than the Eastern District of Missouri where courts have stayed litigation pursuant to the primary jurisdiction doctrine (Doc. 29) (citing Heinrichs v. Wells Fargo Bank, N.A., 2014 WL 2142457 (N.D.Cal. Apr. 15, 2014); Matlock v. United Healthcare Servs., Inc ., 2014 WL 1155541 (E.D.Cal. Mar. 20, 2014); Barrera v. Comcast Holdings Corp., 2014 WL 1942829 (N.D.Cal. May 12, 2014); Gusman v. Comcast Corp., 2014 WL 2115472 (S.D.Cal. May 21, 2014); Higgingbotham v. Hollins, 2014 WL 2865730 (D. Kan. June 24, 2014); Fontes v. Time Warner Cable Inc., 2014 WL 2153919 (C.D.Cal. May 19, 2014)), the district court’s opinion in Swope is persuasive and it is on-point. Notably, this court is obligated to follow Eight Circuit precedent as articulated in Access Telecommunications, 137 F.3d at 608, and Alpharma, 411 F.3d at 938. See Hood v. United States, 342 F.3d 861, 864 (8th Cir.2003) (holding that district courts in the Eighth Circuit are bound to apply Eighth Circuit precedent).    *5 Ninth, Defendants should not be prejudiced by moving forward with discovery because the scope of discovery permitted in civil actions is broad, including materials inadmissible at trial but reasonably likely to lead to admissible evidence. See Fed.R.Civ.P. 26(b)(1). Moreover, even though the petitions understandably urge an expedited FCC ruling and the issue has widespread implications, there is no assurance when or if the FCC will rule on the salient petitions or whether such rulings would be favorable to Defendants. However, a lengthy delay resulting from a stay would prejudice Plaintiff as well as potential class members. See Trainor, 2014 WL 2574527, at * 2 (“It may be that the FCC is poised to overturn its prior decisions, but given that this issue has been pending before the FCC for more than four years, when that new decision will issue is anyone’s guess.”). If, however, FCC rulings are issued that are case-determinative, the court will revisit the matter.