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Barrera v. Comcast Holdings Corp.

United States District Court, N.D. California

May 12, 2014




Now before the Court is Defendant Comcast Holdings Corporation's ("Defendant") motion to stay Plaintiff Sonia Barrera's ("Plaintiff") action under the doctrine of primary jurisdiction. Pursuant to Civil Local Rule 7-1(b), the Court found the matter appropriate for resolution without oral argument, and vacated the hearing previously scheduled for May 19, 2014. For the reasons discussed below, the Court GRANTS Defendant's motion and STAYS the case.


Plaintiff alleges that Defendant and its agents placed calls to her cellular telephone using an automatic dialing system and/or a prerecorded voice in an attempt to collect an overdue balance from a different person (the "Debtor"), whom the Plaintiff does not know, and for which Plaintiff is in no way responsible. Compl. ¶¶ 8-11. When the calls began, Plaintiff informed Defendant that the Debtor was unknown to her and unreachable at her telephone number; Plaintiff further instructed Defendant to remove the cellular telephone number from the account and to cease all communications with her. Id. ¶ 12; see also Barrera Decl. ¶¶ 2-4, Docket No. 26-1 (same). Defendant ” despite knowing that the Debtor could not be reached at Plaintiff's cellular telephone number and despite Plaintiff's request to stop calling ” continued calling Plaintiff at a rate of up to two calls per day, for several days per week for successive weeks, until she obtained the assistance of counsel to ultimately stop the calls. Id. ¶¶ 13-14; see also Barrera Decl. ¶¶ 5-6. Defendant avers: that during the time period alleged in Plaintiff's complaint, a third-party vendor engaged by Defendant called the phone number assigned to Plaintiff for debt collection purposes; that Defendant did not intend to call Plaintiff; and that the Debtor whom Defendant intended to reach is a current subscriber of Defendant's services who provided that cellular telephone number to Defendant and "reasonably evidenced prior express consent" to be contacted at that number, including for debt collection. Jensen Decl. ¶¶ 3-5, Docket No. 24-1. Based on these allegations, Plaintiff brought suit under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 224 et seq., the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), Cal. Civ. Code § 1788 et seq., and for invasion of privacy by intrusion upon seclusion.


"The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency." Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008). This "prudential" doctrine enables a court to determine that "an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch." Id. (citing Syntek Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d 775, 782 (9th Cir. 2002)). "[I]t is to be used only if a claim requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency, and if protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme." Id. (citations and quotation marks omitted).

A court traditionally weighs four factors in deciding whether to apply the primary jurisdiction doctrine: (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. Syntek, 307 F.3d at 781-82. If applicable, the court can either stay proceedings or dismiss the case without prejudice. Id. at 782. In considering these factors, the "primary jurisdiction doctrine is designed to protect agencies possessing quasi-legislative powers' and that are actively involved in the administration of regulatory statutes.'" Clark, 523 F.3d at 1115 (citation omitted); see also id. at 1115-16 (affirming referral to Federal Communications Commission ("FCC") on issue of whether FCC regulation applied to emerging technology).


Defendant argues that the doctrine of primary jurisdiction applies because the very issue on which Plaintiff's claims are predicated ” liability under the TCPA when a wireless telephone user has changed phone numbers ” is currently before the FCC. Plaintiff argues that primary jurisdiction does not apply, and even if it did, her other claims or limited discovery should be allowed to proceed. The Court concludes that the primary jurisdiction doctrine applies here, and therefore GRANTS Defendant's motion to stay the case.

The Second, Third, and Fourth Syntek primary jurisdiction factors are met here because Congress has placed the uniform interpretation and comprehensive enforcement of the TCPA within the primary jurisdiction of the FCC. As described by the Sixth Circuit:

Congress vested the FCC with considerable authority to implement the [TCPA]. The Act gives the agency power to "prescribe regulations to implement" the legislation, 47 U.S.C. §§ 227(b)(2), 227(c)(1), 227(c)(2), to exempt calls from the requirements of the Act, id. §§ 227(b)(2)(B), 227(b)(2)(C)... and to enforce the provisions of the Act and its accompanying regulations, see, e.g., 22 FCC Rcd. 19396 (Nov. 9, 2007); 20 FCC Rcd. 18272 (Nov. 23, 2005). In addition to these law-making and law-enforcing powers, the FCC has interpretive authority over the [TCPA], see Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44... (1984), and its accompanying regulations, see Auer v. Robbins, 519 U.S. 452, 461... (1997)....

Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 466-67 (6th Cir. 2010). In short, "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).

The First Syntek primary jurisdiction factor is also met because resolution of the central issue in this case is presently before the FCC in two pending petitions. On January 16, 2014, United Healthcare Services, Inc. ("United Healthcare") petitioned the FCC seeking an expedited declaratory ruling clarifying that TCPA liability does not apply to informational, non-telemarketing autodialed and prerecorded calls to wireless numbers for which valid prior express consent has been obtained but which, unbeknownst to the calling party, have subsequently been reassigned from one wireless subscriber to another. See United Healthcare Petition at 1, Def.'s Req. for Judicial Notice, Ex. A, Docket No. 25-1.[1] The FCC is currently seeking public comment on the United Healthcare Petition.[2] Additionally, on February 11, 2014, ACA International ("ACA") filed a petition with the FCC supporting the United Healthcare Petition and requesting that the FCC recognize a safe harbor for autodialed "wrong number" non-telemarketing debt collection calls to wireless numbers. See ACA Petition at 15-17, n. 46, Def.'s Req. for Judicial Notice, Ex. B, Docket No. 25-2. A safe harbor, ACA contends, is necessary to prevent holding a debt collector liable for a "good faith" call to a number for which it had appropriate consent at one point, but which now belongs to someone else, simply because the previous consumer never updated his or her new information and telephone number. Id. at 15. Thus, the United Healthcare and ACA Petitions address whether there is liability under the TCPA for the same conduct for which Plaintiff seeks to hold Defendant liable.

In situations where an agency's pending decision applies to the precise issue presented by the litigation, application of the primary jurisdiction doctrine to stay the case is appropriate. See, e.g., Hart v. Comcast of Alameda, No. 07-6350, 2008 WL 2610787, at *2 (N.D. Cal. June 25, 2008) (finding FCC had primary jurisdiction and staying case where two petitions had been filed on the precise issue before the court, and the FCC had announced it would seek public comment); Clark, 523 F.3d at 1113-14 (holding that the FCC had primary jurisdiction over the plaintiff's claim because the FCC's notice of proposed rulemaking sought comment on the precise issue addressed before the court). In fact, in Matlock v. United Healthcare Services, Inc., another district court invoked the primary jurisdiction doctrine and stayed a similar TCPA action involving calls to a "reassigned" cellular telephone number. No. 2:13-CV-02206-MCE-EF, 2014 WL 1155541, at *1 (E.D. Cal. Mar. 20, 2014). In that case, the plaintiff asserted that the defendant violated the TCPA when it initiated calls to his cellular phone without his consent. The defendant ” United Healthcare ” requested that the court stay that case based on the above-referenced petition that it filed with the FCC. Id. at *1-2. The Matlock court granted a stay on primary jurisdiction grounds because the defendant's petition was already before the FCC and comments were due in the near future; ...

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