In Loebenstein v. Chase Bank, 2015 WL 4478136 (D.N.J.,2015), Judge Arpert declined to stay a TCPA case filed by the Plaintiff that sought relief under the TCPA for “wrong party calls”, which arise when a company obtains the telephone number at issue from one of its customers who, after providing the number to the company, and unbeknownst to the company, ceases use of the telephone number.
On June 18, 2015 the FCC provided some degree of clarity, when it adopted a package of declaratory rulings which were summarized in a press release. In relevant part, the release states that “Reassigned Numbers Aren’t Loopholes—If a phone number has been reassigned, companies must stop calling the number after one call.” Press Release, Federal Communications Commission, FCC Strengthens Consumer Protections against Unwanted Calls and Texts (June 18, 2015), (“FCC June 18, 2015 Declaratory Rulings Press Release.”). In the press release, the FCC “embrac[ed] the opportunity afforded by the 21 requests for clarification of the law to clearly stand with consumers against unwanted calls.” Id. According to Plaintiff’s Complaint, “Defendant was attempting to reach a third party with its text message updates regarding that third party’s account.” Dkt. No. 1 at ¶ 10. This likely places the case squarely within the realm of “wrong party” calls. While there may have been some benefit in granting Defendant’s Motion prior to the recent FCC ruling, the Defendant’s purported concerns have been addressed and any benefit to a stay is no longer significant. Accordingly, because the Court finds that Defendant’s request for a stay is moot in light of the FCC’s recent ruling on this issue, the Court declines to invoke the doctrine of primary jurisdiction in this matter. Under the first two factors, the Court finds that while the question at issue is squarely within the FCC’s expertise and discretion, the Court now has the benefit of the FCC’s ruling on this subject and therefore a suspension of the judicial process in this matter is not warranted. With respect to the third factor; the danger of inconsistent rulings, especially regarding “wrong party calls”, has been substantially diminished by the recent FCC ruling. It is likely that many courts will rely on the recent decision for guidance in “wrong party calls”. Therefore, the third factor additionally weighs against an exercise of primary jurisdiction. Likewise, the fourth factor no longer favors primary jurisdiction since a prior application to the agency has been made, and addressed. Thus, every one of the Raritan Baykeeper factors suggests that invoking the doctrine of primary jurisdiction is improper in this case. Defendant’s grounds for staying this action are no longer pertinent and there is no benefit to be garnered from staying this action because the relevant Petitions have been addressed by the FCC. While it remains to be seen whether Defendant was correct in stating that “resolution of … these submissions to the FCC will have substantial, if not dispositive impact on this litigation” the submissions have nonetheless been resolved. While at this juncture the Court makes no finding on the merits of Plaintiff’s claims, it is evident that the FCC has provided the level of guidance it deems necessary to address and clarify the issues presented in the Petitions relied on by Defendant in its Motion to stay. Accordingly, Defendant’s Motion for a stay of this matter is DENIED.