In Fenescey v. Diversified Consultants, Inc., 2014 WL 2526571 (M.D.Pa. 2014), Judge Conaboy refused to stay a TCPA case based on the Primary Jurisdiction Doctrine because he believed the issues presented already had been decided by the Third Circuit Court of Appeals.
Here the question of whether the TCPA applies to non-telemarketing calls made to a cellular phone has been answered by the Third Circuit Court of Appeals. When faced with the argument that the TCPA’s restrictions apply to telemarketers, not debt collectors, the Circuit Court concluded the argument was misplaced because “this distinction does not apply to calls made to cellular phones.” Gager v. Dell Financial Services, LLC, 727 F.3d 265, 273 (3d Cir.2013). ¶ At first glance, Dell’s argument appears correct: the FCC regulations implementing the TCPA permit certain types of autodialed debt collection calls …. See, e.g., 47 C.F.R. § 64.1200(a) (2)(iii), (iv) (exempting calls “made to any person with whom the caller has an established business relationship” and calls “made for a commercial purpose [that do] not include or introduce an unsolicited advertisement or constitute a telephone solicitation”). However, Dell fails to recognize that these exemptions do not apply to cellular phones; rather, these exemptions apply only to autodialed calls made to land-lines. See 47 C.F.R. § 64.1200(a) (2). Therefore, the debt collection exemption invoked by Dell is not applicable in this case. ¶ Looking to the provisions of the TCPA that apply to autodialed calls to cellular phones and the exemptions promulgated by the FCC, it is clear that Dell’s argument is without merit. The statutory provision under which Gager brought her claim bans the use of “any automated telephone dialing system” to call “any … cellular telephone service.” 47 U.S.C. § 227(b)(1)(A) (iii) (emphasis added). The only exemptions in the TCPA that apply to cellular phones are for emergency calls and calls made with prior express consent. See id. 47 C.F.R. § *64.1200(a)(1)(iii). Unlike the exemptions that apply exclusively to residential lines, there is no established business relationship or debt collection exemption that applies to autodialed calls made to cellular phones. Thus, the content-based exemptions invoked by Dell are inapposite.” Gager, 727 F.3d at 273. ¶ Given the force and clarity of this precedential opinion, we have no need to further evaluate the doctrine of primary jurisdiction on the question of whether the TCPA applies to debt collection calls made to cellular phones. FN2 Here Plaintiff alleges that the debt collection calls were made to her cellular phone. (Compl. ¶ 12, ECF No. 1–2.) Therefore, no stay of the proceedings is warranted on the basis of the FCC’s consideration of this issue or related matters. ¶ We now turn to the question of whether a stay is appropriate based on the other issue identified by Defendant: “whether dialing equipment must have a current capacity to generate and dial random or sequential numbers to be considered an ATDS.” (Br. Supp. 1, ECF No. 11.) Defendant argues there is a split in authority on the issue of what constitutes an ATDS. (Br. Supp. 11, ECF No. 11.) Plaintiff maintains a stay is not indicated on this basis because the calls were made using an artificial or prerecorded voice and such calls are regulated by the TCPA even if the call was not placed using an ATDS. (Br. Opp. 7, ECF No. 12 (citing Iniguez v. The CBE Group, 969 F.Supp.2d 1241 (E.D.Cal.2013)).) Defendant does not refute this assertion but argues in reply that “should this matter not be stayed, and the FCC later determines that the TCPA does not apply to debt collection calls, Defendant will have been forced to litigate against a claim that no longer exists.” (Reply Br. 4, ECF No. 13.) We find Defendant’s argument without merit based on the Gager decision dicussed above. Because Defendant’s argument related to the ATDS issue hinges on a potential determination by the FCC that the TCPA does not apply to debt collection calls, and because Gager has decided the issue in this circuit relevant to cellular phone calls, the calls made to Plaintiff in this case, we conclude there is no basis to stay this action on the ATDS issue.