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Molnar v. NCO Financial Systems, Inc.

United States District Court, S.D. California

April 20, 2015



CYNTHIA BASHANT, District Judge.

Presently before the Court is a motion to stay proceedings filed by Defendant NCO Financial Systems, Inc. ("NCO"). NCO requests a stay on the basis that the Federal Communications Commission ("FCC") has primary jurisdiction to decide the following issues: (1) whether equipment with merely the capacity to function as a predictive dialer constitutes an Automatic Telephone Dialing System ("ATDS") under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"); and (2) whether a "good faith defense" protects callers under the TCPA when a consenting consumer's number is reassigned to an non-consenting third person. For the following reasons, the Court DENIES NCO's motion to stay.


On January 16, 2013, plaintiffs Jeffrey Molnar and Wesley Thornton commenced this putative class action against NCO, a debt collector, alleging a violation of the TCPA. (ECF No. 1.) On February 21, 2014, plaintiffs Jeffrey Molnar, [1] Wesley Thornton, Aileen Martinez, Chiquita Bell, Teyia Bolden, and Antoinette Stansberry (collectively "Plaintiffs") filed the operative consolidated class action complaint. (ECF No. 66 ("Compl.").) Plaintiffs allege NCO repeatedly - and without their permission - made phone calls and sent text messages to their cellular phones in violation of the TCPA. ( Id. at ¶¶ 2-3.)

The TCPA makes it illegal 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 [ATDS][2] or an artificial or prerecorded voice... to any telephone number assigned to a... cellular telephone service[.]" See 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiffs seek to bring this suit on behalf of three injured classes: those called with ATDS systems (the "Auto-Dialer Class"); those called by a prerecorded voice (the "Robo-Call Class"); and those sent text messages (the "Text Message Class"). (Compl. at ¶ 65.)

According to Plaintiffs, NCO used "equipment that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and/or receive and store lists of phone numbers, and to dial such numbers" to contact the Auto-Dialer Class and the Text Message Class. ( Id. at ¶¶ 65, 73, 86.) This equipment allegedly enabled NCO to call Plaintiffs without "human intervention." ( Id. at ¶¶ 74, 86.)

On August 11, 2014, NCO filed the pending motion to stay. (ECF No. 95 ("Mot.").) NCO contends the case should be stayed awaiting the resolution of "multiple petitions" for declaratory ruling before the FCC. ( Id. at p. 3.) These petitions request FCC clarification of whether TCPA liability exists for calling reassigned, previously consenting numbers, and whether "capacity" in 47 U.S.C. § 227(a)(1) includes equipment with only the "future ability" to function as an ATDS. ( Id. at pp. 3-5.)[3]


"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). Primary jurisdiction is a "prudential" doctrine that permits a court to stay or dismiss a case if 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. v. Microchip Tech. Inc., 307 F.3d 775, 780 (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. (internal citations and quotation marks omitted).

"No fixed formula exists for applying the doctrine of primary jurisdiction." Davel Commc'ns, Inc. v. Qwest Corp., 460 F.3d 1075, 1086 (9th Cir. 2006) (quoting United States v. W. P. R.R. Co., 352 U.S. 59, 64 (1956)). Ninth Circuit courts, however, weigh four factors in determining whether to apply the doctrine:

(1) [whether] the issue is not "within the conventional experiences of judges, " (2) [whether] the issue "involves technical or policy considerations within the agency's particular field of expertise, " (3) [whether] the issue "is particularly within the agency's discretion, " or (4) [whether] "there exists a substantial danger of inconsistent rulings.

Maronyan v. Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038, 1048-49 (9th Cir. 2011) (quoting Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d 1166, 1172-73 (9th Cir. 2002)).


In passing the TCPA, one of Congress' goals was to prohibit the use of ATDSs "to communicate with others by telephone in a manner that invades privacy." Meyer v. Portfolio Recovery Assocs., 707 F.3d 1036, 1043 (9th Cir. 2012), cert. denied, 133 S.Ct. 2361 (2013) (citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009)). The elements of a TCPA claim under 47 U.S.C. § 227(b)(1)(A) are: (1) the defendant called a cellular telephone number; (2) using an ATDS; (3) ...

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