On March 20, a federal judge in the Eastern District of California granted a motion to stay in a TCPA putative class action on primary jurisdiction grounds, in order to allow the FCC to first decide a pending Petition for Declaratory Ruling that raises the following important question: whether callers are liable under the TCPA for making informational, non-telemarketing calls to telephone numbers for which they have obtained valid “prior express consent,” but that have been reassigned without the caller’s knowledge.
The plaintiff in this case alleged that the defendant made several prerecorded flu-shot reminder calls to his cellular telephone without his consent. The defendant had placed the calls attempting to reach one of its existing plan subscribers from whom it had consent to call — but who, unbeknownst to the defendant, had let his cellular number lapse, at which point it was reassigned to the plaintiff. The plaintiff claimed that by reaching him instead, the defendant violated § 227(b)(1)(A) of the TCPA, which makes it unlawful to place autodialed or prerecorded calls to a wireless number without the “prior express consent of the called party.”
In an attempt to seek guidance in this area, the defendant filed a Petition for Expedited Declaratory Ruling with the FCC seeking clarification that parties are not liable for such non-telemarketing calls to reassigned wireless telephone numbers. The defendant then filed a motion to stay the litigation, arguing that the most prudent course of action would be for the court to let the FCC weigh in on these important issues first as the agency tasked with interpreting the TCPA.
Chief Judge Morrison C. England of the Eastern District of California agreed, finding that a stay of the litigation was warranted because, among other reasons, “judicial economy weighs against issuing a decision that may be undermined by an anticipated ruling of the regulatory body.” The court also noted that because the case “is in the early stages of litigation,” the “Plaintiff will not be prejudiced by any delay.”
The court’s grant of the stay motion is an important development for TCPA defendants who may be facing similar consent, called party, or reassigned number claims in TCPA litigation. Additionally, the Petition for Declaratory Ruling bears watching closely, as it has been the subject of favorable public comment from a variety of industry trade associations, consumers, and other stakeholders and is moving forward at the FCC.