In Leon v. Target Corporation, 2015 WL 3738583 (M.D. Pa. 2015), Judge Caputo refused to apply the Primary Jurisdiction Doctrine to stay a TCPA action.

On April 17, 2015, Target filed its Answer and Affirmative Defenses to Leon’s Complaint. (Doc. 19.) Target then filed the instant motion to stay this action (Doc. 20) because “the issue of revocation of consent to receive non-telemarketing calls is the subject of a petition currently pending before the Federal Communications Commission (“FCC”) and filed by Santander Consumer USA, Inc. in July of 2014.” (Doc. 21, 2.) Target thus seeks a stay of these proceedings pursuant to the primary jurisdiction doctrine.  . .  .Target’s request for a stay will be denied. With respect to the first issue identified by Target, “whether a right to revoke consent even exists” under the TCPA, (Doc. 21, 2), the Third Circuit has already addressed this question. In Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir.2013), the Third Circuit held that “the TCPA provides consumers with the right to revoke their prior express consent to be contacted on cellular phones by autodialing systems.” Id. at 272.  The second issue identified by Target is whether a consumer can revoke consent orally. Target emphasizes that this question was not addressed by the Gager court because the plaintiff in that case revoked her prior express consent in writing. (Doc. 23, 34.) Staying this case under the primary jurisdiction until the FCC rules on the pending Santander Petition is not warranted.  First, as Gager illustrates, the common law concept of consent is an issue within the conventional experience of judges. See Gager, 727 F.3d at 270 (“Our holding that the TCPA allows consumers to revoke their prior express consent is consistent with the basic common law principle that consent is revocable.”). Similarly, the second factor identified in Baykeeper, whether the question is particularly within the agency’s discretion, does not weigh in favor of a stay.  Next, the danger of inconsistent rulings does not weigh in favor of staying this case pursuant to the primary jurisdiction doctrine. Although Gager did not address whether prior express consent could be revoked orally, the Eleventh Circuit in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255–56 (11th Cir.2014), held that in the absence of any contractual restrictions to the contrary, consumers were free to orally revoke consent under the TCPA. Moreover, the line of New York district court cases cited by Target holding that consent cannot be revoked, or can only be revoked in writing, does not demonstrate a substantial danger of inconsistent rulings. (Doc. 23, 5–6.) These decisions all predate Gager and Osorio, and, more importantly, the reasoning of those courts was expressly rejected by both the Third and Eleventh Circuits. See Osorio, 746 F.3d at 1254–55 (finding the reasoning of four cases from the Western District of New York, including Starkey v. Firstsource Advantage, LLC, No. 07–662, 2010 WL 2541756, at *5 (W.D.N.Y. Mar.11, 2010), “conflate[d] apples and oranges”); Gager, 727 F.3d at 270 (disagreeing with the reasoning of Kenny v. Mercantile Adjustment Bureau, LLC, No. 10–1010, 2013 WL 1855782, at *7 (W.D.N.Y. May 1, 2013), and Saunders v. NCO Fin. Sys., Inc., 910 F.Supp.2d 464, 468–69 (E.D.N.Y.2012)).   Lastly, while a prior application has already been made to the FCC, this factor alone does not support abstention on primary jurisdiction grounds. Accordingly, this litigation will not be stayed pursuant to the doctrine of primary jurisdiction.