United States District Court, D. Arizona
Joanne Knapper, on behalf of herself and others similarly situated, Plaintiff,
v.
Cox Communications, Inc., Defendant.
ORDER
Before
the Court is Defendant's Motion to Stay (Doc. 40),
Plaintiff's Response (Doc. 47), and Defendant's Reply
(Doc. 51). For the following reasons, the motion will be
denied.[1]
I.
Background
On
March 28, 2017, Plaintiff filed a complaint against Defendant
for violating the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. (Doc. 1.)
Plaintiff alleges, on behalf of a class, that Defendant
“routinely violates [the TCPA] by using an automatic
telephone dialing system [or an artificial or prerecorded
voice] to place non-emergency calls to numbers assigned to a
cellular telephone service, without prior express
consent.” (Doc. 1 ¶¶ 3, 11.) In other words,
Defendant allegedly “places autodialed calls to wrong
or reassigned telephone numbers.” (Doc. 1 ¶ 3.)
On June
6, 2018, Defendant filed a motion to stay this case. (Doc.
40.) On July 2, 2018, Plaintiff filed her response. (Doc.
47.) On July 16, 2018, Defendant filed its reply. (Doc. 51.)
Both parties have filed supplemental authority notices.
(Docs. 48, 52, 62, 65, 68, 80.)
II.
Discussion
Defendant
argues that this case should be stayed in light of ACA
Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), and the
Federal Trade Commission's (“FCC”) subsequent
Public Notice. (Doc. 40.) It argues that the FCC should soon
rule on what constitutes an automatic telephone dialing
system (“ATDS”), a “called party, ”
in terms of reassigned number liability, and a possible good
faith defense pursuant to the TCPA, all of which bear
directly on its potential liability. (Doc. 40.) It argues
that it would be prejudiced if this case were to move forward
without guidance from the FCC because part of its defense is
that (1) it did not use regulated ATDS technology when making
the calls at issue, (2) Plaintiff is not a “called
party, ” and (3) it should be exempt from liability for
good faith calls to reassigned numbers. (Doc. 40.) It bases
its request for a stay on the primary jurisdiction doctrine
and the Court's inherent authority to manage its docket.
(Doc. 40.)
Plaintiff
argues that this Court should not issue a stay pursuant to
its inherent authority because (1) Defendant has not
established a clear case of hardship, (2) Plaintiff and her
putative class will be prejudiced, and (3) judicial economy
will not be served. (Doc. 47 at 4-7.) Plaintiff argues that
primary jurisdiction is also not a basis for the issuance of
a stay because the definitions at issue here do not require
any specialized expertise or fact-finding abilities by the
FCC. (Doc. 47 at 8.) She also argues that a stay could be
“indefinite” because there is no guarantee that
the FCC will issue its guidance in the near future or that
any guidance will be directly on point to the issues in this
case. (Doc. 47.)
III.
Analysis
A.
Primary Jurisdiction Doctrine
Primary
jurisdiction is reserved for a “limited set of
circumstances that requires resolution of an issue of first
impression, or of a particularly complicated issue that
Congress has committed to a regulatory agency.”
Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753,
760 (9th Cir. 2015) (quoting Clark v. Time Warner
Cable, 523 F.3d 1110, 1114 (9th Cir. 2008)) (internal
quotations omitted). In considering primary jurisdiction, a
court considers: “(1) the need to resolve an issue that
(2) has been placed by Congress within the jurisdiction of an
administrative body having regulatory authority (3) pursuant
to a statute that subjects an industry or activity to a
comprehensive regulatory authority that (4) requires
expertise or uniformity in administration.”
Id. (quoting Syntek Semiconductor Co. v.
Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir.
2002)). “Efficiency” is the deciding factor in
whether to invoke primary jurisdiction. Id. (quoting
Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1165
(9th Cir. 2007)).
Congress
has delegated the FCC with the authority to make rules and
regulations to implement the TCPA. Satterfield v. Simon
& Schuster, Inc., 569 F.3d 946, 953 (9th Cir. 2009)
(citing 47 U.S.C. § 227(b)(2)). Therefore, the FCC has
interpretative authority over the TCPA and its accompanying
regulations. See Barrera v. Comcast Holdings Corp.,
No. 14-CV-00343-TEH, 2014 WL 1942829, at *2 (N.D. Cal. May
12, 2014) (quoting Charvat v. EchoStar Satellite,
LLC, 630 F.3d 459, 466-67 (6th Cir. 2010)). Thus, in
determining the stay factors, the second through fourth
prongs are met. The issue here is whether there is an issue
that the FCC needs to resolve. The Court finds there is not.
1.
ATDS
Marks
v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018),
ruled on the definition of an ATDS within the meaning of the
TCPA. Defendant argues that the Ninth Circuit's ruling is
an outlier and inconsistent with the binding authority of
ACA International. (See Doc. 68 at 1.) The
Court is not persuaded. First, ACA International did
not make any determinations after it set aside the FCC's
2015 Declaratory Order as it related to an ATDS and
reassigned number liability. The Marks court
explained that ACA International overturned the
FCC's 2015 Declaratory Ruling as to an ATDS, which also
overturned “any prior FCC rules that were reinstated by
the 2015 order.” Id. at 1049. As such, the
Marks court reasoned that the FCC's relevant
rulings were no longer binding law. Id.
The
court then engaged in its own statutory analysis and
ultimately defined what constituted an ATDS. Id. at
1052. Therefore, Marks represents binding law in
this Circuit. Consequently, there is no matter of first
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