In Wahl v. Stellar Recovery, Inc., 2014 WL 4678043 (W.D.N.Y. 2014), Judge Geraci stayed a TCPA case under the Primary Jurisdiction Doctrine.

Plaintiffs oppose the stay request, arguing that (1) the doctrine of “primary jurisdiction” assumes the issue presented one of first impression and is inapplicable in this case where on multiple occasions in the past the FCC has determined that predictive dialing equipment typically used by a debt collection agency is an ATDS under the TCPA; (2) the FCC’s 2003 TCPA Order or the 2007 Declaratory Ruling is final and binding on this Court; (3) the dual allegations in the Complaint concern both the TCPA and the FDCPA, but the anticipated FCC ruling on the TCPA has no bearing on the FDCPA portion of the case; and (4) Plaintiffs would be prejudiced by delay of judicial resolution of this action, as it prolongs having their day in court; any FCC ruling would be prospective only. Pl.’s Resp. 2–12, ECF No. 17.    Applying the primary jurisdiction factors to this case, I find that granting the requested stay is reasonable in the circumstances presented. First, evolving technology has made this issue more than just about a debt collector calling a consumer’s cell phone without consent. This issue involves technical and policy considerations within the FCC’s expertise. The petitions pending before the FCC ( see Labaki Decl., Ex. A–E, ECF Nos. 15–3, 15–4, 15–5, 15–6, 15–7), offer insight into the complexity of the technical and policy issues, the resolution of which is outside the conventional experience of this Court. Second, it is this Court’s opinion, the FCC will be called upon to exercise its considerable discretion in resolving the issues presented. Third, the substantial danger of inconsistent rulings is at hand based upon the number of cases cited within Plaintiffs’ and Defendant’s papers which have arrived at different conclusions respecting these issues. Moreover, the FCC’s apparent willingness to offer guidance to the communications industry, Congress, and consumers seems to be a signal that resolution of some, or all, of the issues covered in the pending petitions, may soon be forthcoming. Fourth, the pending petitions before the FCC make clear that its prior rulings and pronouncements may insufficiently address these concerns and the opportunity seems ripe to provide much-needed clarification. Finally, I do not believe Plaintiffs have articulated any real prejudice which would warrant this Court’s refusal to grant the stay, especially, given the position of other judges within the Western District of New York.   For the reasons set forth herein above, I hereby GRANT the Defendant’s Motion for a Stay of the Proceedings, including discovery and other pretrial proceedings, until a decision is issued by the FCC addressing the issues raised in any of the pending petitions and relevant to the claims raised in this case.