CEB Prac. Guide § 2B.09: Primary Jurisdiction Doctrine

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In Passero v. Diversified Consultants, 2014 WL 2257185 (W.D. N.Y. 2014), here, Judge Curtin stayed a TCPA case against a Debt Collector who placed multiple calls to plaintiffs’ cellular telephone service in an effort to collect on a debt incurred by a non-party. As indicated by the pleadings and submissions presently before the court, DCI has raised questions in this case… Read More

In Gusman v. Comcast Corp., 2014 WL 2115472 (S.D.Cal. 2014), Judge Curiel stayed a TCPA reassigned number case based on the FCC’s primary jurisdiction. Recently, district courts have stayed cases concerning this particular issue of whether liability attaches for calls placed to reassigned telephone numbers based on these petitions before the FCC. Fontes v. Time Warner Cable Inc., No. 2:14cv2060–CAS(CWx),… Read More

In Higgenbotham v. Diversified Consultants, Inc., 2014 WL 1930885 (D.Kan. 2014), Judge O'Hara stayed a TCPA case against a debt collector based on the Primary Jurisdiction Doctrine. The court finds that the situation in this case fits the purpose of the doctrine. Here is a recap of what we know: (1) Plaintiff alleges that one of the two ways defendant… Read More

In Barrera v. Comcast Holdings Corporation,  2014 WL 1942829 (N.D.Cal. 2014), Judge Henderson stayed a TCPA case against a debt collector under the Primary Jurisdiction of the FCC. Plaintiff, in opposition, argues that the FCC's resolution of this issue will not be relevant and will have “little to no” effect on the outcome of the case. Opp'n at 2. According to… Read More

In Meyer v. Receivables Performance Management, LLC, 2014 WL 1744284 (W.D.Wash. 2014), Judge Jones denied to stay a TCPA action based on the primary jurisdiction argument, denied Plaintiff’s motion for discovery as to dialer-lists, and denied Plaintiff’s request to delay filing a Motion for Class Certification. The District Court declined to stay the Action based on the Primary Jurisdiction argument.… Read More

In Heinrichs v. Wells Fargo Bank, Judge Alsup stayed a TCPA class action based on the Primary Jurisdiction of the FCC and its intention to rule on pending petitions relating to the issues raised by the 7th Circuit's Soppet decision and the 11th Circuit's Osorio decision. A copy of Judge Alsup's Order is here.  The Plaintiff had argued that there… Read More

In Matlock v. United Healthcare Services, Inc., 2014 WL 1155541 (E.D.Cal. 2014), Judge Englund stayed a TCPA case based on the Primary Jurisdiction argument in a wrong-party TCPA case. The crux of Plaintiff's complaint is that Defendant violated the TCPA when it initiated calls to his cell phone without his consent. Defendant purportedly nonetheless had the consent of the prior… Read More

In Charvat v. Allstate Corporation, --- F.Supp.2d ----, 2014 WL 866377 (N.D.Ill. 2014), Judge Bucklo held that consent obtained during an autodialed call, such as requesting that a consumer ‘press 1’ to receive further information, does not constitute the prior consent necessary to deliver the message in the first place.  Judge Bucklo also refused to stay the matter under the… Read More

In Mendoza v. UnitedHealth Group, Inc., No. C131553-PJH N.D. Cal. 2014), Judge Hamilton granted a stay of a TCPA case pending outcome of the FCC's ruling on various pending petitions related to ATDS and whether they must possess "present" capacity to randomly generate numbers at the time the call is placed.  A copy of Judge Hamilton's Order can be found… Read More

ACA’s petition was filed on January 31, but was accepted for filing by the FCC on February 11.  ACA’s petition is broad-based, asks the FCC to accomplish the following objectives: • Confirm that not all predictive dialers are categorically automatic telephone dialing systems. •Confirm that “capacity” under the TCPA means present ability. •Clarify that prior express consent attaches to the… Read More

In Couser v. Pre-paid Legal Services, Inc., 2014 WL 197717 (S.D.Cal. 2014), Judge Burns found that a TCPA Class Action Plaintiff might state a claim against an alleged agent hired by the Defendant to promote its business, but suggested that the case might be proper for a stay under the Primary Jurisdiction doctrine. This is a Telephone Communications Protection Act… Read More

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… Read More

In Swope v. Credit Management, LP, 2013 WL 607830 (E.D.Mo. 2013), Judge Perry followed Soppett, holding that an unanticipated receiver of autodialed calls to a cellular telephone had standing to pursue a TCPA claim.  The facts were as follows: According to the complaint, defendant obtained an account receivable by Charter Communications and began making phone calls to collect the debt.… Read More

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