In Gensel v. Performant Technologies, Inc., No. 13-C-1196, 2015 WL 6158072, (E.D. Wisc. Oct. 20, 2015), the U.S. District Court for the Eastern District of Wisconsin granted Performant Technologies, Inc.’s (“Performant”) motion to continue the stay pending judicial review of the FCC’s July 10 Order.

Plaintiff filed suit against Performant alleging violations of the TCPA based on several calls she received from Performant on her cell phone. Plaintiff’s cell phone provider assigned her a number that was previously assigned a person who defaulted on a student loan. Performant repeatedly called the number attempting to collect the debt.

Last year, Performant filed a motion to stay pending the FCC’s ruling on two petitions regarding the TCPA, and the court granted the motion based upon the primary jurisdiction doctrine. The FCC issued its Declaratory Ruling and Order on July 10, 2015, and three appeals followed. One appeal is pending before the Seventh Circuit and two are pending before the D.C. Circuit.

Relevant to this case, the FCC’s July 10 Order provided that the term “capacity” in the definition of “automatic telephone dialing system” is not limited to the equipment’s current configuration and includes its potential functionalities. Thus, the definition of an autodialer does not exempt equipment that lacks the “present ability” to dial randomly or sequentially.

The FCC also created a very limited safe harbor for callers who make calls without knowledge of a cell number’s reassignment and with a reasonable basis to believe they have valid consent to make the call. Callers may make one additional call to a number after reassignment to allow them to gain actual or constructive knowledge that the number was reassigned. If, however, the one additional call does not yield actual knowledge of reassignment, the caller is deemed to have constructive knowledge and must cease calling the number. Unless the call falls within this limited safe harbor provision, calls to a reassigned cell number violate the TCPA even when a previous subscriber, but not the current subscriber, provided prior express consent.

Addressing Performant’s motion to continue the stay pending judicial review of the FCC’s Order, the court found it unlikely that the appellate courts would overrule the FCC’s decision regarding the safe harbor after reassignment. The court noted the FCC’s 3-2 split, but found that the majority agreed with the Seventh Circuit’s holding that caller intent is irrelevant to the definition of “called party.” The court noted the Seventh Circuit’s decision in Soppet v. Enhanced Recovery Co., 679 F.3d 637 (7th Cir. 2012), where it held that “consent to call a given number must come from its current subscriber.” Because the FCC’s ruling was consistent with Seventh Circuit precedent, the court found that the FCC would not likely be overruled.

The court predicted, however, that the FCC would more likely be overruled on the capacity issue. Citing dissenting Commissioners’ opinions, the court found that the FCC majority’s interpretation of the term “capacity” contradicts the plain language of the TCPA. As such, the FCC’s ruling on this issue would not be entitled to deference on appeal. The court determined that if the Seventh Circuit ruled that “capacity” means “present capacity” as described in the plain language of the TCPA, then the ruling would be dispositive, as it was undisputed that Performant’s telephony system did not have the capacity to randomly or sequentially dial numbers. Accordingly, and in the interest of judicial economy, the court granted Performant’s motion to continue the stay.

Most likely, other courts will follow suit and extend stays pending judicial review of the FCC’s Order. The court’s decision may also shed light on the expected outcome of the appeals, particularly in the Seventh Circuit.