United States District Court, N.D. California
ORDER DENYING MOTION TO STAY PENDING FCC GUIDANCE RE:
DKT. NO. 26
JOSEPH
C. SPERO CHIEF MAGISTRATE JUDGE
I.
INTRODUCTION
Plaintiff
Lawrence Pascal brings a putative class action against
Defendant Concentra, Inc. (“Concentra”) under the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, asserting that Concentra has violated the
TCPA by sending text messages using an automatic telephone
dialing system (“ATDS”) without the consent of
recipients. Presently before the Court is Concentra's
Motion to Stay Pending FCC Guidance (“Motion”),
in which Concentra asks the Court to stay the case under the
primary jurisdiction doctrine or its inherent authority
because the Federal Communications Commission
(“FCC”) may issue an order soon addressing what
constitutes an ATDS under the TCPA. The Court finds that the
Motion is suitable for determination without oral argument
and therefore vacates the hearing set for November 1, 2019
pursuant to Civil Local Rule 7-1(b). For the reasons stated
below, the Motion is DENIED.[1]
II.
BACKGROUND
The
TCPA makes it unlawful to call a cellular telephone number
using an ATDS without the prior consent of the recipient. 47
U.S.C. § 227(b)(1)(A). The statute defines an ATDS as
“equipment which has the capacity . . . to store or
produce telephone numbers to be called, using a random or
sequential number generator; and . . . (B) to dial such
numbers.” 47 U.S.C. § 227(a)(1). It also vests the
FCC with the authority to implement the restrictions of the
TCPA. 47 U.S.C. § 227(b)(2). Exercising that authority,
the FCC has issued a series of orders that address what
constitutes an ATDS, including most recently, an order issued
in 2015 (“the 2015 Order”). In the Matter of
Rules & Regulations Implementing the Tel. Consumer Prot.
Act of 1991, 30 F.C.C. Rcd. 7961 (2015); see also
Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1045 (9th
Cir. 2018), cert. dismissed, 139 S.Ct. 1289 (2019) (“In
a series of rulings, from 2003 to 2015, the FCC determined
that predictive dialers and other new technology qualified as
an ATDS, even if they did not generally generate or store
random or sequential numbers.”). The definition of ATDS
in the 2015 Order, however, was set aside as overbroad by the
D.C. Circuit in ACA Int'l v. Fed. Commc'ns
Comm'n, 885 F.3d 687 (D.C. Cir. 2018).
In the
wake of ACA, the FCC solicited public comment to
address what constitutes an ATDS in light of that
decision. See Request for Judicial Notice
(“RJN”), Ex. A (Public Notice dated May 14, 2018
entitled “Consumer and Governmental Affairs Bureau
Seeks Comment on Interpretation of the Telephone Consumer
Protection Act in Light of the D.C. Circuit's ACA
International Decision”).[2] However, the Ninth Circuit
resolved the definition of ATDS without waiting for new
guidance from the FCC in Marks v. Crunch San Diego,
LLC, which it decided on September 20, 2018. Concluding
that the FCC's prior orders interpreting what sort of
device qualified as an ATDS were no longer binding following
ACA, the Ninth Circuit looked directly to the
statute to define the term. 904 F.3d at 1049-1050. Finding
the language of the statute to be ambiguous, it looked to the
context and structure of the statutory scheme to determine
Congress's intent. Id. at 1050-1053. It
concluded that an ATDS means “equipment which has the
capacity - (1) to store numbers to be called or (2) to
produce numbers to be called, using a random or sequential
number generator - and to dial such numbers automatically
(even if the system must be turned on or triggered by a
person).” Id. at 1053.
Following
Mark, the FCC issued another public notice, this
time seeking public comment addressing the meaning of ATDS in
light of Marks. See RJN, Ex. B (Public
Notice dated October 3, 2018 entitled “Consumer and
Governmental Affairs Bureau Seeks Comment on Interpretation
of the Telephone Consumer Protection Act in Light of the
Ninth Circuit's Marks v. Crunch San Diego, LLC
Decision”). To date, no further guidance regarding the
definition of “ATDS” has been issued by the FCC.
III.
ANALYSIS
A.
Whether the Case Should be Stayed Under the Primary
Jurisdiction Doctrine
“Primary
jurisdiction is a prudential doctrine that permits courts 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.'” Astiana v. Hain Celestial
Grp., 783 F.3d 753, 760 (9th Cir. 2015) (quoting
Clark v. Time Warner Cable, 523 F.3d 1110, 1114)
(9th Cir. 2008). “The doctrine is not an avenue for
courts to ‘secure expert advice' from
administrative agencies ‘every time a court is
presented with an issue conceivably within the agency's
ambit.'” Izor v. Abacus Data Sys., Inc.,
No. 19-CV-01057-HSG, 2019 WL 3555110, at *2 (N.D. Cal. Aug.
5, 2019) (quoting Brown v. MCI WorldCom Network Servs.,
Inc., 277 F.3d 1166, 1172 (9th Cir. 2002)).
“Rather, it is only appropriately invoked in cases
involving ‘an issue of first impression, or of a
particularly complicated issue that Congress has committed to
a regulatory agency.'” Id. (quoting
Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d
1166, 1172 (9th Cir. 2002)).
The
Court finds that the primary jurisdiction doctrine does not
support a stay for the reasons stated by Judge Guilliam in
Izor, where he explained:
the FCC released a Public Notice seeking comment on the issue
in May 2018. . . . But the Ninth Circuit has since
definitively answered the question. Marks v. Crunch San
Diego, LLC held that the term ATDS “means
equipment which has the capacity-(1) to store numbers to be
called or (2) to produce numbers to be called, using a random
or sequential number generator-and to dial such numbers
automatically (even if the system must be turned on or
triggered by a person).” 904 F.3d 1041, 1053 (9th Cir.
2018). Marks issued on September 20, 2018, months
after the FCC began seeking public comments on the what
constitutes an ATDS. Marks thus is controlling
authority in the Ninth Circuit and is binding on the Court.
And the Ninth Circuit's resolution of the issue without
waiting for FCC guidance further demonstrates that the issue
(1) is no longer a matter of first impression, and (2) is not
“a particularly complicated issue” that merits
waiting for FCC guidance. See Brown, 277
F.3d at 1172.
2019 WL 3555110, at *3 (N.D. Cal. Aug. 5, 2019). Further, the
fact that the FCC issued another notice seeking public
comment after Marks was decided does not change the
Court's conclusion. As Judge Guilliam pointed out, since
that second notice was issued, “the Ninth Circuit has
confirmed that Marks is the law of the Ninth Circuit.
Id. (citing Deguid v. Facebook, Inc., 926
F.3d 1146, 1150 (9th Cir. 2019) (holding that the
Marks “definition governs this
appeal”)).
This
Court, like the court in Izor, declines “to
hold that the state of the law is so unclear that this case
must await FCC guidance when the Ninth Circuit has repeatedly
found otherwise.” Id. The ...