In Fried v. Sensia Salon, Inc., 2013 WL 6195483 (S.D.Tex. 2013), Judge Atlas found that whether an autodialer was used to send text messages under the TCPA was a question best addressed by the FCC, not by the Courts.
Sensia asserts that the “question of whether this system is an unlawful autodialer is primed for resolution by the FCC.” FN27 Sensia contends that the system used to send text messages to Plaintiffs “indisputably does not dial,” and “a finding that the system is un-lawful can only be made by rewriting the statute to remove the requirement that the system be able to dial a telephone number.” FN28 Furthermore, Sensia cautions that “an adjudication that the system violates the TCPA will result in the imposition of billions upon billions of dollars in liability overnight” on the MMAs and their clients who utilized this system with the understanding that it did not violate the TCPA. ¶ . . .The parties do not appear to disagree as to the technical aspects of the equipment at issue. Defendant Air2Web has submitted a declaration from its Chief Technology Officer, Harvey Scholl, which states that Air2Web’s system does not “dial” phone numbers, but rather delivers messages to recipients via direct binds with carrier networks.FN34 Plaintiffs do not contest this fact, but instead refer the Court to FCC orders and reports that have supposedly diverged from the literal wording of the TCPA. ¶ The Court concludes that the FCC is in the best position to opine, in the first instance,FN35 on the technical and potentially far-reaching issues impli-cated in Plaintiffs’ claims, namely, whether the use of Air2Web’s and Textmunications’ systems to transmit text messages to potential customers identified by Sensia violates the TCPA. The FCC has particular expertise in this field of telecommunications, enabling the agency to make a decision based on technical and technological knowledge not necessarily available to this Court. Furthermore, the FCC has significant ex-perience analyzing and interpreting this statute, and has previously addressed the definition of “automatic telephone dialing system” under the ATDS. See, e.g., In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. at 14090–95 (discussing whether a predictive dialer qualifies as an “automatic telephone dialing system” under the TCPA); In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Notice of Proposed Rule-making and Memorandum Opinion and Order, 17 FCC Rcd. 17459, 17473–76 (Sept. 18, 2002) (seeking comment on whether certain autodialers, including predictive dialers, qualify as “automatic telephone dialing systems” under the TCPA); see also In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling, 27 FCC Rcd. 15391, 15392–94 (Nov. 29, 2012) (raising applicant’s argument that equipment used to send text messages was not a ATDS because it “does not have the capacity to store or produce tele-phone numbers to be called using a random or sequential number generator to dial such numbers,” but ultimately issuing a declaratory ruling on other grounds). Thus, the FCC is in a prime position to determine whether the use of this technology violates the TCPA.
Accordingly, the District Court ordered the parties to file a petition with the FCC.
ORDERED that Defendant Sensia’s Motion to Stay Proceedings Pending Primary Jurisdiction Re-ferral [Doc. # 52] is GRANTED. The parties shall request from the Federal Communications Commission a ruling on whether the equipment Defendants’ employed to send text messages to Plaintiffs qualifies as an automatic telephone dialing system in violation of the Telephone Consumer Protection Act. The Court urges the FCC to act promptly on this matter, as the issues have widespread implications.