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Fenescey v. Diversified Consultants, Inc.

United States District Court, M.D. Pennsylvania

June 4, 2014

ELIZABETH FENESCEY, Plaintiff,
v.
DIVERSIFIED CONSULTANTS, INC., Defendant.

MEMORANDUM

RICHARD P. CONABOY, District Judge.

Here we consider Defendant's Motion to Stay Proceedings (Doc. 10) filed on April 21, 2014. With this motion, Defendant seeks to stay the proceedings in the above-captioned matter because relevant provisions of the Telephone Consumer Protection Act ("TCPA") are currently pending before the Federal Communications Commission ("FCC") in four petitions for declaratory ruling and the present circumstances meet the standards for staying the case under the primary jurisdiction doctrine. (Def.'s Br. Supp. Stay Proceedings 1, ECF No. 11.) Plaintiff opposes this motion on the basis that there is no need for the doctrine of primary jurisdiction to be invoked in this matter. (Br. Opposing Mot. Stay 7, ECF No. 12.) For the reasons discussed below, we conclude Defendant's motion is properly denied.

I. Background

This case was removed to this Court from the Lackawanna Court of Common Pleas on February 25, 2014. (Notice of Removal, ECF No. 1.) With this action, filed on January 13, 2014, Plaintiff asserts that Defendant violated the TCPA by placing telephone calls to her cellular phone using an automated or prerecorded voice, that Defendant used an automatic telephone dialing system ("ATDS") to call her cellular phone, and that Defendant violated the Fair Debt Collection Practices Act ("FDCPA") by causing her phone to ring repeatedly with the intent to annoy, abuse, or harass her. (Br. Opp. 1, ECF No. 13.) The calls were placed for debt collection purposes. (Br. Supp. 2, ECF No. 11.)

II. Discussion

Disposition of the pending motion requires only brief discussion. Defendant asserts the Court should stay this matter because the allegations in Plaintiff's Complaint turn on issues currently pending before the FCC: 1) whether the TCPA applies to non-telemarkenting calls such as the debt collection calls at issue here; and 2) whether dialing equipment must have a current capacity to generate and dial random or sequential numbers in order to be considered an ATDS. (Br. Supp. 1, ECF No. 11.) Defendant maintains that considerations pertinent to the doctrine of primary jurisdiction warrant granting the stay. ( Id. ) We disagree.

The Third Circuit Court of Appeals considered the doctrine of primary jurisdiction in Baykeeper v. NL Industries, Inc., 660 F.3d 686 (3d Cir. 2011). Baykeeper first noted that "[f]ederal courts have a virtually unflagging obligation... to exercise the jurisdiction given them.' Colorado River Water Conservation District v. United States, 424 U.S. 800, 817... (1976). Abstention, therefore is the exception rather than the rule.' Riley, 45 F.3d at 771."[1] The Circuit Court went on to explain that

[t]he doctrine of primary jurisdiction
applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.

Baykeeper, 660 F.3d at 691 ( quoting United States v. W. P. RR. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956)). Noting that "[n]o fixed formula exists for applying the doctrine of primary jurisdiction, " id., Baykeeper set out the four-factor test relied upon by the parties and the district court. The factors are:

(1) Whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency's particular field of expertise; (2) Whether the question at issue is particularly within the agency's discretion; (3) Whether there exists a substantial danger of inconsistent rulings; and (4) Whether a prior application to the agency has been made.

Baykeeper, 660 F.3d at 691 (internal quotation omitted).

Here the question of whether the TCPA applies to non-telemarketing calls made to a cellular phone has been answered by the Third Circuit Court of Appeals. When faced with the argument that the TCPA's restrictions apply to telemarketers, not debt collectors, the Circuit Court concluded the argument was misplaced because "this distinction does not apply to calls made to cellular phones." Gager v. Dell Financial Services, LLC, 727 F.3d 265, 273 (3d Cir. 2013).

At first glance, Dell's argument appears correct: the FCC regulations implementing the TCPA permit certain types of autodialed debt collection calls.... See, e.g., 47 C.F.R. ยง 64.1200(a) (2) (iii), (iv) (exempting calls "made to any person with whom the caller has an established business relationship" and calls "made for a commercial purpose [that do] not include or introduce an unsolicited advertisement or constitute a telephone solicitation"). However, Dell fails to recognize that these exemptions do not apply to cellular phones; rather, these exemptions apply only to ...

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