In Passero v. Diversified Consultants, 2014 WL 2257185 (W.D. N.Y. 2014), here, Judge Curtin stayed a TCPA case against a Debt Collector who placed multiple calls to plaintiffs’ cellular telephone service in an effort to collect on a debt incurred by a non-party.
As indicated by the pleadings and submissions presently before the court, DCI has raised questions in this case regarding (1) whether the “predictive dialer” apparatus utilized by DCI to place the calls at issue is an automatic telephone dialing system subject to the prohibitions of the TCPA, and (2) whether the TCPA even applies to the debt collection calls complained of. See Item 19-1, p. 1. These are the essential issues raised by prior application to the FCC in In re Communication Innovators, and other petitions cited above, presenting questions regarding interpretation of terms and policies clearly within the agency’s particular field of expertise and discretion, and well outside the conventional experience of this court. Indeed, the FCC has previously addressed the definition and scope of the term “automatic telephone dialing system” under the TCPA, and has revisited the issue several times in recognition of the “need to consider changes in technologies.” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 , 18 F.C.C. Rcd. 14014, 14092, 2003 WL 21517853, at *46 (F.C.C. July 3, 2003); see also F.C.C. Rcd. 8752, 1992 WL 690928 (F.C.C. Oct. 16, 1992); 10 F.C.C. Rcd. 12391. 1995 WL 464817 (F.C.C. Aug. 7 1995); 23 F.C.C.R. 559, 2008 WL 65485 (F.C.C. Jan. 4, 2008). With regard to the danger of inconsistent rulings, the court need look no further than the split of case law authority on the threshold issue as to whether the protective provisions of the TCPA even apply to debt collection calls. Compare Meadows v. Franklin Collection Service, Inc., 414 F. App’x 230, 235 (11th Cir. 2011) (FCC has made clear that debt collection calls are subject to the TCPA’s “established business relationship” and “commercial purpose” exemptions”), and Fransiak v. Palisades Collection, LLC, 822 F. Supp. 2d 320 (W.D.N.Y. 2011) (relying on FCC rulemaking decisions that debt collector’s ATDS calls to non-debtor fall under TCPA’s “commercial call exemption”), with Inguez v. The CBE Group, 969 F. Supp. 2d 1241, 1247 (E.D.Cal. 2013) (neither TCPA nor implementing federal regulations contain a debt collector exception, or any exceptions related to calls made to cellular phones; citing cases). . . .Finally, the court finds that the advantages of deferring to the FCC’s “primary jurisdiction” over the issues raised by the TCPA claims in this case (and in several other cases pending before this court) outweigh the potential for costs resulting from further complications and delay in the administrative proceedings, considering the recent correspondence between the FCC and Congress indicating the likelihood of a ruling on the pending petitions relatively soon.