In Gensel v. Performant Technologies, Inc., 2015 WL 402840 (E.D.Wis. 2015), Judge Randa stayed a TCPA—wrong party case under the Primary Jurisdiction Doctrine.
Lennett Gensel’s cell phone provider assigned her a number that was previously assigned to a woman who defaulted on a student loan. Performant Technologies, Inc. repeatedly called that number in an attempt to collect on the debt. Gensel alleges that by doing so, Performant violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Gensel moves for partial summary judgment, but Performant moves to stay pending rulings on two petitions currently before Federal Communications Commission (“FCC”). . . . Performant’s motion invokes the primary juris-diction doctrine. This doctrine “is really two doctrines.” Arsberry v. Ill., 244 F.3d 558, 563 (7th Cir.2001). In its “central and original form,” the doctrine applies “only when, in a suit involving a regulated firm but not brought under the regulatory statute itself, an issue arises that is within the exclusive original jurisdiction of the regulatory agency to resolve, although the agency’s resolution of it will usually be subject to judicial review.” Id . “In its weaker sense,” the sense relevant here, the doctrine “allows a court to refer an issue to an agency that knows more about the issue.” In re StarNet, Inc., 355 F.3d 634, 639 (7th Cir.2004); see also Arsberry at 563 (the doctrine “allows a federal court to refer a matter extending beyond the ‘conventional experiences of judges’ or ‘falling within the realm of administrative discretion’ to an administrative agency with more specialized experience, expertise, and insight’ ”) (quoting Nat’l Comm’n Assoc., Inc. v. Am. Telephone & Telegraph Co., 46 F.3d 220, 222–23 (2d Cir.1995)). ¶ . . . The calls in this case were related to debt collection, and the application of the TCPA to such calls is far from clear. See Passero v. Diversified Consultants, Inc., No. 13–CV–338C, 2014 WL 2257185, at *2–3 (W.D.N.Y.2014) (noting split of authority on the issue). Gensel argues that the FCC settled the issue in a 2008 ruling, but subsequent inconsistent rulings demonstrate that it did nothing of the sort. Hence, the request for a ruling in the CI Petition. Similarly, both petitions seek clarity on the issue of “capacity.” Higginbotham v. Diversified Consultants, Inc., No. 13–2624–JTM, 2014 WL 1930885, at *3 (D.Kan. May 14, 2014) (“Neither the TCPA nor previous FCC orders address the meaning of ‘capacity,’ specifically, whether it should be interpreted broadly to mean potential capacity or narrowly to mean present capacity”). This is another issue at play in the instant case. See Performant’s Additional Statement of Facts, ¶ 6 (“The Avaya and Soundbite systems (the systems used to call the subject number) did not have the capacity to randomly or sequentially call phone numbers, nor do they have such capacity now”). Thus, a stay is warranted pending the outcome of either or both petitions. See Hurrle v. Real Time Resolutions, Inc., No. C13–5765 BHS, 2014 WL 670639 (W.D.Wash. Feb. 20, 2014) (granting stay pending CI Petition); Wahl v. Stellar Recovery, Inc., No. 14–cv–6002–FPG, 2014 WL 4678043, at *2 (W.D.N.Y. Sept. 18, 2014) (granting stay pending CI and ACA Petitions). ¶ The ACA Petition also seeks clarity on a troubling aspect of this case: whether there should be a safe harbor for autodialed “wrong number” calls. Instead of simply answering the phone and telling Performant that she wasn’t the person they were trying to reach, Gensel (on the advice of counsel) documented all the calls she received for a lengthy period of time. This was a transparent attempt to accumulate damages—at $500 per violation, Gensel is asking for $94,000 even before taking the issue of treble damages to the jury. Since the TCPA is a strict liability statute, the absence of a safe harbor encourages such opportunistic behavior. Strict liability is particularly inappropriate here because Performant stopped calling Gensel once she finally answered the phone and told them they had the wrong number. Other courts have granted stays in “wrong number” cases in deference to the ACA Petition. See, e.g ., Barrera v. Comcast Holdings Corp., No. 14–cv–00343–TEH, 2014 WL 1942829 (N.D.Cal. May 12, 2014). The behavior of litigants such as Gensel may inform the FCC’s determination regarding a safe harbor provision. ¶ In sum, a stay of these proceedings under the primary jurisdiction doctrine will promote uniformity in the administration of the TCPA. Instead of furthering a split of authority regarding the issues pre-sented by Gensel’s complaint, it is more efficient to simply wait for the FCC to do what it has already been asked to do. The Court will be in a better position to proceed to judgment with definitive guidance from the FCC. CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 446 (7th Cir.2010) (holding that the FCC’s orders relating to the TCPA are binding under the Hobbs Act).