Story v. Mammoth Mountain Ski Area, LLC

Filing 45

ORDER signed by Judge John A. Mendez on 05/12/15 ORDERING that the 17 Motion to Stay is GRANTED; the parties shall update the Court by joint submission within 5 court days of a ruling by the FCC on Defendant's petition. In addition, joint status reports shall be filed every 60 days. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL STORY, individually and
on behalf of all others
similarly situated,

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Plaintiff,

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No.

2:14-cv-02422-JAM-DAD

ORDER GRANTING DEFENDANT’S
MOTION TO STAY

v.
MAMMOTH MOUNTAIN SKI AREA,
LLC, a Delaware limitedliability company,

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Defendant.

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Defendant Mammoth Ski Area, LLC (“Defendant”) has requested

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the Court stay (Doc. #17) the current action pursuant to the

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primary jurisdiction doctrine in order to allow the Federal

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Communications Commission (“FCC”) to resolve petitions currently

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pending before it. 1

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Story (“Plaintiff”) argues a stay would not be proper under the

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circumstances and would unduly delay the proceedings.

In his opposition (Doc. #28), Plaintiff Paul

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for April 8, 2015.
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Defendant operates, manages and owns a ski resort in Mammoth

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Lakes, California.

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occasions in April 2014 he received prerecorded or artificial

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voice telephone calls on his cellular phone from Defendant.

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calls were advertisements to purchase season passes to

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Defendant’s ski resort.

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given any signed authorization to anyone expressly permitting

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[Defendant] to use his cellular-telephone number for

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Plaintiff alleges that on two separate

The

Plaintiff alleges that he “had never

telemarketing or advertising purposes.”

Comp. ¶¶ 9-10.

Plaintiff’s Complaint contains class action allegations and

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one cause of action for violation of the Telephone Consumer

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Protection Act (“TCPA”), 47 U.S.C. § 227.

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II.

OPINION

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A.

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Plaintiff requests judicial notice (Doc. #30) of various

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notices and reports of the FCC as well as a judicial order in

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another district court case.

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Court take notice (Doc. #35) of its petition filed with the FCC,

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a House Report and a public notice issued by the FCC in

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connection with Defendant’s petition.

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Request for Judicial Notice

In addition, Defendant requests the

Federal Rule of Evidence 201 permits courts to take judicial

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notice of matters that “can be accurately verified and readily

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determined from sources whose accuracy cannot be reasonably

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questioned.”

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filed with[,] [an] administrative agency” are properly subject to

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judicial notice under Rule 201.

Documents that “are administered by[,] or publicly

Tovar v. Midland Credit Mgmt.,
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2011 WL 1431988, at *2 (S.D. Cal. 2011) (taking judicial notice

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of reports and orders of the FCC, and of an FCC notice of

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proposed rulemaking, under Rule 201); see also U.S. v. Woods, 335

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F.3d 993, 1001 (9th Cir. 2003) (taking judicial notice of the

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Federal Register).

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of official acts of the legislative, executive, or judicial

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branch of the United States government, including court records.

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See Bryant v. Carleson, 444 F.2d 353, 357 (9th Cir. 1971) (taking

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judicial notice of various court actions).

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Similarly, judicial notice may also be taken

The Court grants both of these requests for judicial notice
pursuant to Rule 201.

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Defendant also filed an ex parte application to file a

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statement of recent authority (Doc. #40) regarding a comment by

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the United States Chamber of Commerce to the FCC.

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Plaintiff filed a request for judicial notice (Doc. #43)

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regarding the lifting of a stay in another Eastern District Court

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case where the parties jointly stipulated to the stay and were

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nearing a potential settlement.

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material underlying either request relevant to the issues

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presented by this motion.

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DENIED.

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B.

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“The primary jurisdiction doctrine allows courts to stay

In addition,

The Court does not find the

As such, these requests are both

Legal Standard

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proceedings or to dismiss a complaint without prejudice pending

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the resolution of an issue within the special competence of an

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administrative agency.”

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1110, 1114 (9th Cir. 2008).

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prudential; its invocation by a court does not indicate the court

Clark v. Time Warner Cable, 523 F.3d
The primary jurisdiction doctrine is

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lacks jurisdiction.

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court determines that an otherwise cognizable claim implicates

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technical and policy questions that should be addressed in the

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first instance by the agency with regulatory authority over the

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relevant industry rather than by the judicial branch.”

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Id.

The doctrine can be invoked when “a

Id.

“The doctrine of primary jurisdiction is not equivalent to

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the requirement of exhaustion of administrative remedies.”

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Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775,

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780-81 (9th Cir. 2002).

Rather, “the doctrine of primary

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jurisdiction is committed to the sound discretion of the court

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when ‘protection of the integrity of a regulatory scheme dictates

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preliminary resort to the agency which administers the scheme.’”

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Id. (quoting United States v. Gen. Dynamics Corp., 828 F.2d 1356,

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1362 (9th Cir. 1987)).

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Although the issue lies within a court's discretion, courts

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have traditionally invoked the doctrine when the following

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factors are present: (1) the need to resolve an issue that

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(2) has been placed by Congress within the jurisdiction of an

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administrative body having regulatory authority (3) pursuant to a

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statute that subjects an industry or activity to a comprehensive

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regulatory authority that (4) requires expertise or uniformity in

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administration.

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Lambert v. Buth-Na-Bodhaige, Inc., No. 2:14-CV-00514-MCE, 2014 WL

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4187250, at *1 (E.D. Cal. 2014).

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factors, the Court is mindful ‘that the primary jurisdiction

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doctrine is designed to protect agencies possessing

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quasilegislative powers and that are actively involved in the

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administration of regulatory statutes.’”

General Dynamics Corp., 828 F.2d at 1362;

“In considering the four

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Lambert, 2014 WL

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4187250, at *1 (quoting Clark, 523 F.3d at 1115).

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C.

Discussion

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Defendant contends the Court should stay this case pursuant

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to the primary jurisdiction doctrine to allow the FCC to formally

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respond to several petitions pending before it.

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The TCPA prohibits any person from making “any call (other

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than a call made for emergency purposes or made with the prior

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express consent of the called party) using any automatic

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telephone dialing system or an artificial or prerecorded voice

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. . . to any telephone number assigned to a . . . cellular

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telephone service . . . .”

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portion of the statute for the Court’s present purposes is “prior

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express consent.”

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47 U.S.C. § 227(b)(1).

The relevant

In 2012, the FCC issued a Report and Order entitled “In the

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Matter of Rules and Regulations Implementing the Telephone

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Consumer Protection Act of 1991.”

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15, 2012) (effective October 16, 2013) (“the 2013 rule change”).

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In it, the FCC initially noted that “the TCPA is silent on the

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issue of what form of express consent – oral, written, or some

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other kind – is required for calls that use an automatic

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telephone dialing system or prerecorded voice to deliver a

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telemarketing message.”

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concluded that it had “discretion to determine, consistent with

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Congressional intent, the form of express consent required.”

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The FCC then stated that, based on the volume of consumer

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complaints, statutory goals, and substantial support in the

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record, the form of “express consent” required under §227(b)(1)

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would thereafter be “prior express written consent” that is

27 F.C.C.R. 1830 (F.C.C. Feb.

27 F.C.C.R. 1830, 1838 ¶ 21.

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The FCC

Id.

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signed and is “sufficient to show that the consumer: (1) received

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‘clear and conspicuous disclosure’ of the consequences of

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providing the requested consent . . . ; and (2) having received

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this information, agrees unambiguously to receive such calls at a

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telephone number the consumer designates.

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¶ 18, 1838 ¶ 20, 1844 ¶ 33.

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27 F.C.C.R. 1830, 1837

Defendant contends “prior express consent,” as interpreted

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prior to the 2013 rule change, was given by Plaintiff, not

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through the privacy policy on Defendant’s website, but through

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his provision of his phone number to Defendant.

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contention that Plaintiff’s provision of his number to Defendant

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satisfied the “prior express consent” requirements of §227 prior

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to the 2013 rule change.

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Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd.

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8752, 8769 ¶ 31 (1992) (“persons who knowingly release their

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phone numbers have in effect given their invitation or permission

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to be called at the number which they have given, absent

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instructions to the contrary”); Baird v. Sabre Inc., 995 F. Supp.

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2d 1100, 1106 (C.D. Cal. 2014); Olney v. Job.com, Inc., No. 1:12-

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CV-01724-LJO, 2014 WL 1747674, at *4-5 (E.D. Cal. 2014).

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Reply at pp. 7-

Prior pronouncements from the FCC support Defendant’s

In the Matter of Rules & Regulations

To determine whether Defendant violated the TCPA, the Court

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will have to decide whether Defendant procured proper consent

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before allegedly making the calls to Plaintiff.

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ultimately entail an analysis of exactly what effect the 2013

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rule change had on the preexisting agreement or relationship

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between these parties.

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This will

Defendant argues that several petitions filed with the FCC
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are relevant to this critical issue, and, therefore, the Court

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should stay the matter under the primary jurisdiction doctrine.

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The Coalition of Mobile Engagement Providers (“CMEP”) filed a

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petition (Doc. #17-7) with the FCC in October of 2013 seeking

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clarification that valid written consent obtained prior to the

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2013 rule change is effective after the rule change and that

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renewing consent is not required.

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Association (“DMA”) filed its own petition (Doc. #17-9) the

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following year requesting the FCC forbear from enforcing new

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disclosure standards for previously existing written consent

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agreements and seeking clarification that previously obtained

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written consent is valid.

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The Direct Marketing

Plaintiff does not contest that issues regarding the

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activity underlying his claim have been “placed by Congress

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within the jurisdiction of an administrative body having

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regulatory authority” (the FCC), or that interpretation of the

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TCPA requires expertise or uniformity in administration.

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Dynamics Corp., 828 F.2d at 1362.

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stay, he argues that there is no issue that will affect this case

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to be resolved by the FCC.

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petitions concern the ongoing validity of written consents, which

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Defendant never received from Plaintiff, and that even if relief

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is granted by the FCC in response to those petitions, it can only

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be implemented on a prospective basis, providing no support to

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Defendant in the current action.

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General

In opposing this motion to

Plaintiff contends the CMEP and DMA

Opp. at pp. 1-2.

The 2013 rule change included a sunset provision that

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allowed previously obtained consent to continue to suffice for an

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approximately twelve-month period, but specifically stated that
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once the new “written consent rules become effective, however, an

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entity will no longer be able to rely on non-written forms of

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express consent to make autodialed or prerecorded voice

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telemarketing calls, and thus could be liable for making such

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calls absent prior written consent.”

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Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27

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F.C.C. Rcd. 1830, 1857 ¶ 68 (2012).

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In the Matter of Rules &

As an initial matter, the Court does not find support for
the proposition that Plaintiff’s provision of his phone number to

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Defendant constituted written consent.

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and DMA petitions, the FCC may very well conclude that written

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consents obtained before the rule change may continue to be

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effective, however, this will not necessarily affect the

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viability of Plaintiff’s claim in this action.

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clearly undermine Defendant’s position that the Court should

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exercise its discretion to stay the case under the primary

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jurisdiction doctrine.

In addressing the CMEP

This would

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However, as discussed in its reply, Defendant has filed its

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own petition (Doc. #34-2) with the FCC, which Defendant contends

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renders Plaintiff’s arguments moot.

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Plaintiff contends Defendant’s petition raises no issue that

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needs to first be resolved by the FCC.

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Plaintiff argues that although the petition is disguised as one

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seeking clarification, it is really an improper challenge to the

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validity of the FCC’s prior rulemaking and that Defendant’s

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contentions therein are frivolous.

In his surreply (Doc. #42),

Surreply at pp. 1-2.

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The Court finds Defendant’s petition directly addresses the

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primary issue before the Court as it seeks “a ruling that ‘prior
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express consent’ under [the TCPA] includes all consents obtained

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prior to October 16, 2013 where the consumer has provided their

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telephone number to the advertiser and the advertiser has a

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contractual right to contact the consumer at that number.”

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Defendant’s Petition at p. 1.

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will very likely address, to some extent, the merit of

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Plaintiff’s claim.

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Defendant’s petition may conflict with, and thereby undermine,

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the decision of this Court unless a stay is issued.

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The FCC’s ruling on this petition

Therefore, the FCC’s anticipated ruling on

The comment period for Defendant’s petition will close soon

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and there is no evidence that Defendant continues to make these

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calls, so Plaintiff will likely suffer no further damages.

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Court thus finds it appropriate under these circumstances to

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exercise its discretion pursuant to the primary jurisdiction

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doctrine and stay the current matter because the issues are

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better resolved “within the special competence of an

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administrative agency.”

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1114.

Clark v. Time Warner Cable, 523 F.3d at

Defendant’s motion to stay is GRANTED.

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The

III.

ORDER

For the reasons set forth above, the Court GRANTS

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Defendant’s motion to stay.

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by joint submission within five court days of a ruling by the FCC

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on Defendant’s petition.

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be filed with this Court every sixty days.

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The parties shall update the Court

In addition, joint status reports shall

IT IS SO ORDERED.
Dated:

May 12, 2015

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