Knapper v. Cox Communications Inc.

          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 ...