Pickens et al v. American Credit Acceptance, LLC

Filing 20

ORDER STAYING CASE. Granting 15 MOTION to Stay Litigation for Up to Six Months Pending the FCC's Clarification of Important Legal Issues and Incorporated Memorandum of Law filed by American Credit Acceptance, LLC.. The partie s are ORDERED to file a joint STATUS REPORT by the 19th day of each month updating this court on the disposition of the three pertinent FCC decisions identified in this Order. Status Report due by 10/20/2014. Signed by Magistrate Judge Katherine P. Nelson on 9/19/2014. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
BRENDA PICKENS and DOROTHY
CHAMBERS,
Plaintiffs,
v.
AMERICAN CREDIT ACCEPTANCE,
LLC,
Defendant.

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Civil Action No. 2:14-00201-KD-N

ORDER
Now before the undersigned United States Magistrate Judge is Defendant’s
Motion to Stay this litigation (for up to six months) pending expected rulings of the
Federal Communications Commission (the FCC) pursuant to the primary
jurisdiction doctrine (doc. 15), filed August 14, 2014, along with Plaintiffs’ Response
in Opposition (doc. 18) and the Defendant’s Reply (doc. 19).1

For the reasons

A motion to stay is not case dispositive under 28 U.S.C. § 636(b) and Rule 72
and, as such, may be referred to a Magistrate Judge to address through an order rather
than through a report and recommendation to the District Judge. See, e.g., Ball v. SCI
Muncy, Nos. 1:08–CV–700, etc., 2012 WL 2805019, at *1 (M.D. Pa. July 10, 2012); accord
Hutchins v. Bayer Corp., C.A. No. 08–640–JJF–LPS, 2009 WL 192468, at *3 (D. Del. Jan.
23, 2009); Delta Frangible Ammunition, LLC v. Sinterfire, Inc., Civil Action No. 06-1477,
2008 WL 4540394, at *1 n.1 (W.D. Pa. Oct. 7, 2008); Pass & Seymour, Inc. v. Hubbell Inc.,
532 F. Supp. 2d 418, 426 n.7 (N.D.N.Y. 2007); Securities & Exch. Comm’n v. Kornman, No.
3:04CV1803L, 2006 WL 148733, at *2 (N.D. Tex. Jan. 18, 2006); Simoneaux v. Jolen
Operating Co., No. Civ.A.04-2467, 2004 WL 2988506, at *2 (E.D. La. Dec. 15, 2004);
Livingston v. Metropolitan Life Ins. Co., No. 7:99CV0231 R, 2000 WL 422242, at *4–5 (N.D.
Tex. Mar. 6, 2000); cf. Moore v. Chuck Stevens Automative, Inc., No. CA 1:12–00663–KD–C,
2013 WL 627232, at *1 & n.3 (S.D. Ala. Feb. 20, 2013) (finding a motion to stay and compel
arbitration to not be case dispositive; collecting authority, including PowerShare, Inc. v.
Syntel, Inc., 597 F.3d 10 (1st Cir. 2010)); Chatman v. Pizza Hut, Inc., No. 12 C 10209, 2013
WL 2285804, at *2 & n.1 (N.D. Ill. May 23, 2013) (finding same; collecting authority,
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explained herein, the motion to stay is hereby ORDERED.
Background2
Plaintiffs Brenda Pickens and Dorothy Chambers established a cell phone
account in their names in September 2013 (Doc. 18 at 1). Unknown to the plaintiffs,
the telephone number attached to this account had previously been provided by a
debtor of American Credit Acceptance, LLC (“ACA”), by the name of Elizabeth
Mosley. ACA called the plaintiffs’ cell phone many times attempting to contact
Elizabeth Mosley.
In connection with those calls, Plaintiffs have brought the instant suit
alleging, among other items, the violation of the Telephone Consumer Protection
Act of 1991 (“TCPA”). Plaintiffs’ Complaint (Doc. 1 at 4); see, 47 U.S.C. § 227.
Plaintiffs allege that Defendant employed an “automatic telephone dialing system”
(“ATDS”) and an “artificial and prerecorded voice” in calling a cellular telephone, in
violation of the statute. Id. In defense to these parts of the complaint, Defendant
answers that it had the consent of Elizabeth Mosley to call the telephone number in
question, as allowed by the statute. Defendant’s Answer (Doc. 6 at 11); see, 47
U.S.C. § 227.
Proper

adjudication

of

the

instant

case

requires

application

and

interpretation of the part of the TCPA defining what constitutes an ATDS and the
determination of how “consent” operates in the statute when a cellular telephone
including Moore)). Any such order entered by the Magistrate Judge remains reviewable to
the extent it is either “clearly erroneous” or “contrary to law.” See 28 U.S.C. § 636(b)(1)(A);
FED. R. CIV. P. 72(a); see also S.D. ALA. L.R. 72.3.
2

Only the facts necessary for the adjudication of this motion are recounted here.

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number has been reassigned. The Federal Communications Commission (“FCC”)
has power to interpret the TCPA (see, 47 U.S.C. § 227 (“The Commission shall
prescribe regulations to implement the requirements of this subsection.”)) and
several petitions are now pending before it which Defendant maintains may, in
part, answer these questions. Doc. 15 at 2.
Primary Jurisdiction
Primary jurisdiction doctrine applies “whenever enforcement of [a] claim
requires the resolution of issues which, under a regulatory scheme, have been
placed within the special competence of an administrative body.” United States v.
W. Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161 (1956). “ ‘[T]he main justifications for
the rule of primary jurisdiction are the expertise of the agency deferred to and the
need for a uniform interpretation of a statute or regulation.’ ” Boyes v. Shell Oil
Prods. Co., 199 F.3d 1260, 1265 (11th Cir.2000) (quoting Cnty. of Suffolk v. Long
Island Lighting Co., 907 F.2d 1295, 1310 (2d Cir.1990)). While “[n]o fixed formula
exists for applying the doctrine of primary jurisdiction,” United States v. W. Pac.
R.R. Co., 352 U.S. at 64, “[t]here are four factors uniformly present in cases where
the doctrine properly is invoked: (1) the need to resolve an issue that (2) has been
placed by Congress within the jurisdiction of an administrative body having
regulatory authority (3) pursuant to a statute that subjects an industry or activity
to a comprehensive regulatory scheme that (4) requires expertise or uniformity in
administration.” In re Horizon Organic Milk Plus DHA Omega-3 Marketing and
Sales Practice Litigation, 955 F.Supp.2d 1311, 1348 (S.D. Fla. 2013) (quoting United

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States v. Gen. Dynamics Corp., 828 F.2d 1356, 1362 (9th Cir.1987) (citing Ricci v.
Chi. Mercantile Exch., 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973); Western
Pac. R.R., 352 U.S. at 59, 77 S.Ct. 161; United States v. Pac. & Atl. Ry. &
Navigation Co., 228 U.S. 87, 33 S.Ct. 443 (1913); United States v. Yellow Freight
Sys., 762 F.2d 737 (9th Cir.1985))).

All four of these factors typically associated

with primary jurisdiction are clearly met in the instant case.
(1) The need to resolve an issue
The questions which Defendant wishes to have answered during a proposed
stay involve the interpretation of two terms in the TCPA. The first question is
whether the term “capacity” in the part of the TCPA defining the characteristics of a
“automatic telephone dialing system” refers to “present capacity” or “theoretical
capacity.” Doc. 19 at 3; Doc. 18 at 3; see 47 U.S.C. § 227(a)(1). The second question is
who the term “called party” refers to in the part of the TCPA detailing the consent
exception in a situation where a cell phone number has been reassigned. Doc. 15 at
20; Doc. 18 at 3; see 47 U.S.C. § 227(b)(1)(A). Answers to both of these questions are
needed to resolve issues in this case. Specifically, Count II of the complaint (doc. 1
at 4) requires that Plaintiffs show that the Defendant utilized either an ATDS or an
“artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). The same count also
requires a decision on whether the “called party” consented, as the consent
exception applies to a violation of the prohibition on using either an ATDS or an
“artificial or prerecorded voice.” Id.
(2) Placed by Congress within the jurisdiction of an administrative body having

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regulatory authority
The implementation and interpretation of the TCPA have been placed
squarely within the jurisdiction of the FCC. See 47 U.S.C. § 227(b)(2) (“The
Commission shall prescribe regulations to implement the requirements of this
subsection.”) In response, the FCC has issued rules clarifying and interpreting the
TCPA and its regulations. See, e.g., In re Rules & Regulations Implementing
Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Declaratory
Ruling, 23 FCC Rcd. 559, 559-60 (2008).
(3) Pursuant to a statute that subjects an industry or activity to a comprehensive
regulatory scheme
The TCPA is a comprehensive regulatory scheme governing the use of
automated telephone equipment that both parties agree applies to Defendant’s
ability or inability to call Plaintiffs’ cell phone number. See Doc. 15 and Doc 18
generally.
(4) Requiring expertise and uniformity in administration
The FCC has expertise in the telecommunications area due to the fact that
the TCPA and other statutes have been entrusted to its care for interpretation and
implementation. See, e.g., 47 U.S.C. § 227; 47 U.S.C. § 201 (Communications Act of
1934); 47 U.S.C. § 160 (Telecommunications Act of 1996). The FCC is more wellsuited to decide the question of what constitutes an “automatic telephone dialing
system,” which is a highly technically question of interpretation within the “special
competence of [this] administrative agency.” Boyes, 199 F.3d at 1265.

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Even if this court did have the expertise necessary to decide these questions,
piecemeal adjudication of what constitutes “consent” would lead to uneven
application of the TCPA. Rather than precipitate the inconsistency that might be
created by “judicial interference,” (Boyes, 199 F.3d at 1265) this court can foster
uniformity through “preliminary resort” to the proper administrative body. See, Far.
E. Conference v. United States, 342 U.S. 570, 574 (1952).
Staying litigation will not prejudice Plaintiffs
Plaintiffs strongly oppose a stay before discovery has been concluded. Doc. 18
at 4-5, 14. However, the undersigned finds that Plaintiffs will not be prejudiced by
this temporary interruption, which will

serve to “protect[ ] the administrative

process from judicial interference.” Boyes, 199 F.3d at 1265. Discovery will resume
where it left off prior to the stay and may be sharply focused by any decision the
FCC makes, promoting efficiency for this court and for Plaintiffs.
Decisions pending before the FCC
Plaintiffs’ Motion to Stay identifies seven different petitions that are
currently pending before the FCC that appear to relate to these issues raised in the
instant litigation. However, this court has identified three which speak specifically
to the questions necessary for adjudicating this case. The petitions of
“Communication Innovators” for a declaratory ruling (Doc. 15-Ex. 13) and the
“Professional Association for Customer Engagement” (“PACE”) for a declaratory
ruling (Doc. 15-Ex. 20) address the meaning of “capacity” in the definition of an
ATDS. See, 47 U.S.C. § 227(a)(1). The petition of “United Healthcare Services, Inc.”

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for an expedited declaratory ruling (Doc. 15-Ex. 24) addresses the issue of consent
with relation to a reassigned telephone number. See, 47 U.S.C. § 227(b)(1)(A).
Should the FCC weigh in on these petitions in the next six months, this court will
be in a better position to decide the questions presented by the instant case.
Conclusion
Because each of the factors typically associated with the need to stay
litigation under the primary jurisdiction doctrine are met in this case and because
staying litigation will not prejudice Plaintiffs, it is hereby ORDERED that
Defendant’s Motion to Stay litigation (for up to six months) pending expected
decisions by the FCC in “Communication Innovators,” “PACE,” and “United
Healthcare Services, Inc.” is GRANTED. In the interim, parties are ORDERED to
file a joint STATUS REPORT by the 19th day of each month updating this court
on the disposition of the three pertinent FCC decisions identified in this Order.
DONE and ORDERED this the 19th day of September, 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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