In Knapp–Ellis v. Stellar Recovery, Inc., 2014 WL 5023632 (W.D.Wash. 2014), Judge Martinez declined to stay a TCPA case under the Primary Jurisdiction Doctrine.
Upon review of the relevant factors, the Court declines to apply the doctrine of primary jurisdiction at this time. First, the Court is not persuaded that the issues involved in this matter are ones outside the competency of the Court. The pending Petitions, particularly that presented by ACA International (Dkt.# 20, Ex. 2, pp. 1–2) and Communication Innovators ( id. at Ex. 3, p. 24), seek FCC ruling on the definitions of “capacity” and “consent” under TCPA, as these terms are relevant to the contours of an ATDS. For instance, among its requests, ACA International’s Petition seeks FCC clarification as to (1) whether all predictive dialers constitute an ATDS, (2) whether the term “capacity” under the TCPA means present ability, and (3) whether prior express consent attaches to the person incurring a debt or to the telephone number originally provided by the debtor. Id. at Ex. 2, pp. 1–2. Interpretation of the statutory terms “prior express consent” and “capacity” is within the conventional policy experience of judges. See Pimental v. Google, Inc., 2012 WL 1458179, *3 (N.D.Cal.2012). Indeed, courts in the Ninth Circuit have interpreted these statutory terms in the past. See, e.g., Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009) (holding that the TCPA’s “clear language mandates that the focus must be on whether the equipment has the capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator,’ not whether the system actually did so”) (emphasis in original); Gragg v. Orange Cab Co., Inc., 995 F.Supp.2d 1189, 1193 (W.D.Wash.2014) (finding that “capacity” under the TCPA means “present, not potential, capacity”). These statutory interpretation questions are clearly not matters of first impression which would prescribe application of the primary jurisdiction doctrine. Cf. Clark, 5213 F.3d at 1114 (applying primary jurisdiction doctrine where claim raised issue of first impression as to whether a technology could be classified as “telecommunication services” or “information services”). ¶ Relatedly, the Court is not persuaded that interpretation of the issues raised in this case requires the FCC’s technical or policy expertise. To date, Defendant has provided scant information about its dialing systems other than denying that its system, as configured, possesses the present capacity to randomly or sequentially dial phone numbers. See Dkt. # 24, p. 3. Defendant has not shown that adjudication of whether its system can be classified as an ATDS, as this term is used in the TCPA, presents particularly complicated technical questions. See Frydman v. Portfolio Recovery Associates, LLC, 2011 WL 2560221, *4 (N.D.Ill.2011) (“Whether the predictive dialers used by defendant are ‘automatic telephone dialing systems’ or ‘autodialers’ as these terms are used in the TCPA is a straightforward interpretative questions addressed by prior FCC rulings and some case law.”). In addition, while the issues raised by the pending Petitions certainly fall within the FCC’s jurisdiction, interpretation of “capacity” and “consent” are not expressly committed to the agency’s discretion. See Pimental, 2012 WL 1458179, *4 (finding that although these terms are not defined in the TCPA, Congress has not placed the task of defining them particularly within the FCC’s discretion); cf. 47 U.S.C. 227(b)(2)(C) (expressly providing the FCAA with the authority to exempt certain calls to cellular telephones from the TCPA). ¶ Finally, the Court does not locate at this time any danger of inconsistent rulings if this matter is not stayed. First, the issues raised in the Petitions do not appear to be dispositive of claims and defenses in this case. For instance, the ACA International and United Health Care Services, Inc. Petitions seek clarification as to whether prior express consent attaches to the debtor or the phone number. See Dkt. # 20, Exs. 2, 8. These issues are inapposite in this case, as Plaintiffs deny that prior express consent was given in any manner whatsoever. See FAC. As to the definition of “capacity” raised by the ACA International and Communication Innovators Petitions, see Dkt. # 20, Exs. 2, 3, Defendant, who thus far only denies using an ATDS, has not shown that the question of whether “capacity” means “present capacity” has any bearing on this case. And despite Defendant’s representations to the contrary, none of the Petitions appear to seek an FCC ruling exempting debt collectors from the proscriptions of the TCPA. ¶ Finally, Defendant has not shown that a decision by the FCC on any of the Petitions is imminent. While the FCC has solicited public comments on some of the pending Petitions, see Dkt. # 20, Exs. 12, 13, there is no indication that a ruling on these Petitions is forthcoming. It is widely understood that the delay encountered in waiting for agency decision-making is often lengthy. See Nat’l Commc’ns Ass’n v. Am. Tel. and Tel. Co., 46 F.3d 220, 225 (2d Cir.1995) (noting in denying to apply primary jurisdiction doctrine that “agency decisionmaking often takes a long time”) (internal quotations omitted). Plaintiffs will be unfairly burdened if forced to wait for an unknown period of time for a decision that is unlikely, in any event, to be dispositive of the issues before the Court. See Pimental, 2012 WL 1458179, *5 (denying stay where there was “no indication that the FCC has taken up or will take up the issues”). Should Defendant establish at a later stage in this proceeding that the FCC is indeed poised to rule on an issue that may govern claims or defenses in this case, Defendant may renew the instant Motion at that time. For now, the Court is persuaded that a stay will only hinder the parties from discovering the facts and opinions necessary to clarify the contours of the claims and defenses in this case such that the Court, or a jury, may determine whether they are indeed affected by an FCC decision, if any relevant decision does issue.