Pascal v. Concentra, Inc.

          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 ...