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Gusman v. Comcast Corporation

United States District Court, S.D. California

May 21, 2014

JAMES GUSMAN, individually and on behalf of all others similarly situated, Plaintiff,


GONZALO P. CURIEL, District Judge.

Before the Court is Defendant's motion to stay the case. (Dkt. No. 34.) Plaintiff filed an opposition and Defendant replied. (Dkt. Nos. 45, 48.) The parties also filed Notices of Supplemental Authority concerning recent district court cases addressing issues relevant in this motion. (Dkt. No. 49, 50, 54.) Based on the reasoning below, the Court GRANTS Defendant's motion to stay the case.


On May 2, 2013, Plaintiff James Gusman filed a putative class action complaint against Defendant Comcast Corporation for violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 277 et seq. (Dkt. No. 1.) He alleges that in February 2013, Defendant contacted Plaintiff with an automatic telephone dialing system ("ATDS") using an "artificial or prerecorded voice" in order to discuss Defendant's subscription services with Plaintiff as many as ten times in a day. ( Id., Compl. ¶ 13.) After answering each call, an artificial or prerecorded voice instructed Plaintiff to hold while he was connected to an available representative. (Id. ¶ 14.) These call began when Plaintiff obtained the cellular telephone number around February 1, 2013. (Id. ¶ 16.) Plaintiff did not provide his cellular telephone number to Defendant and did not provide prior express consent to receive calls or messages. (Id. ¶¶ 17, 24.) Plaintiff received about three calls from Defendant where Defendant used an "artificial or prerecorded voice" in conjunction with an ATDS. (Id. ¶ 20.) Plaintiff alleges these telephone communications various provisions under the TCPA. One specific provision relevant to the instant motion is that it is unlawful for any person "to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party ) using any automatic telephone dialing system or an artificial or prerecorded voice" to, among other things, cellular telephones. 47 U.S.C. § 227(b)(1)(A) (emphasis added).

Defendant does not dispute that calls were made to Plaintiff; however, it argues that Comcast had the consent of the prior owner of Plaintiff's cellular telephone number. At the time Comcast called Plaintiff, between March 30 and June 2, 2013, Comcast's records show the number belonged to the account of a subscriber with a past due balance. The subscriber's telephone number was recycled and reassigned to Plaintiff. Plaintiff obtained his telephone number on February 1, 2013. Plaintiff testified that he stopped receiving calls from Comcast in the Fall of 2013. (Dkt. No. 48-1, Hawk Decl. ¶ 2.)

Defendant filed a motion to stay the proceedings under the primary jurisdiction doctrine because the Federal Communications Commission, the administrative agency charged by Congress with regulatory authority over the TCPA, is currently considering the specific issues raised in the complaint. Plaintiff opposes.

On January 16, 2014, United Healthcare Services, Inc. ("United Healthcare") filed a petition for expedited declaratory ruling with the FCC. (Dkt. No. 34-4, D's RJN, Ex. A.) Petitioner seeks to "clarify the applicability of the... [TCPA] and the Commission's TCPA rules 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." (Id. at 7.) On January 31, 2014, ACA International ("ACA") filed a petition for rulemaking with the FCC. ( Id., Ex. B.) In that case, ACA sought several rulings including "clarify that prior express consent attaches to the person incurring a debt, and not the specific telephone number provided by the debtor at the time a debt was incurred...." (Id. at 21-22.)

On February 6, 2014, the FCC issued a Public Notice seeking Comment on Petition for Expedited Declaratory Ruling from United Healthcare filed on January 16, 2014. ( Id., D's RJN, Ex. C.) The reply Comment Date was on March 24, 2014. (Id.)

On February 21, 2014, the FCC issued a Public Notice directing interested persons to file statements opposing or supporting the Petition for Rulemaking by ACA within thirty days. ( Id., D's RJN, Ex. D.)

On March 25, 2014, an FCC Commissioner Michael O'Reilly, on the Official FCC Blog, noted the 30% increase of TCPA lawsuits over the past year and a backlog of petitions pending at the FCC. (Dkt. No. 48-2, D's RJN, Ex. E.) Commissioner O'Reilly noted the importance of ruling on these issues "as soon as possible." (Id.) He further wrote, "[t]hrough this process, the FCC has the opportunity to answer important questions and provide much needed guidance on a variety of TCPA issues, including... whether there is liability for calls made to reassigned phone numbers...." (Id.)


A. Primary Jurisdiction Doctrine

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). The doctrine is a "prudential" one where the court determines that a claim implicates technical and policy questions that should be first addressed in by the relevant agency with regulatory authority over the relevant industry rather than by the courts. Syntek Semiconductor Co., Ltd. v. Microchip Tech., Inc. , 307 F.3d 775, 780 (9th Cir. 2002).

Primary jurisdiction does not apply every time a court is presented with an issue conceivably within the agency's expertise but only used 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.'" Clark , 523 F.3d at 1114 (citations omitted). If a district court applies the doctrine of primary jurisdiction, the issue is "referred" to the relevant agency and the court either stays the proceedings or dismisses the case without prejudice so the parties may seek an administrative ruling. Id. at 1115; see also Syntek , ...

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