Murray v. Diversified Consultants, LLC

Filing 22

ORDER denying 21 motion to stay. Signed by Judge James S. Moody, Jr on 6/9/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MICHAEL MURRAY,
Plaintiff,
v.

Case No. 8:13-cv-3074-T-30AEP

DIVERSIFIED CONSULTANTS, INC.,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant Diversified Consultants, Inc.’s
Motion to Stay (Dkt. 21). Upon consideration of the motion, and being otherwise advised
in the premises, the Court concludes that the motion should be denied.
DISCUSSION
Defendant Diversified Consultants, Inc. (“DCI”) contends that Plaintiff brought this
action in part alleging DCI violated the Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227 et seq., when DCI called Plaintiff’s cellular telephone via an automatic
telephone dialing system (“ATDS”) without Plaintiff’s prior express consent. DCI argues
that the Court should stay this action because the allegations in Plaintiff’s complaint turn on
the following issues currently pending before the Federal Communications Commission
(“FCC”): 1) whether the TCPA applies to non-telemarketing 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. DCI maintains
that considerations pertinent to the doctrine of primary jurisdiction warrant granting the stay.
The Court disagrees.
The first issue regarding whether the TCPA applies to non-telemarketing calls such
as debt collection calls has already been addressed by the Eleventh Circuit in Osorio v. State
Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014). The Eleventh Circuit’s holding in
Osorio makes clear that the distinction related to non-telemarketing calls does not apply to
calls made to cellular phones. Indeed, the provisions of the TCPA that apply to autodialed
calls to cellular phones and the exemptions promulgated by the FCC demonstrate that DCI’s
argument with respect to whether the TCPA applies to non-telemarketing calls is without
merit. Plaintiff’s TCPA claim is brought under 47 U.S.C. § 227(b)(1)(A)(iii), which bans
the use of “any automated telephone dialing system” to call “any ... cellular telephone
service.” The only exemptions in the TCPA that apply to cellular phones are for emergency
calls and calls made with prior express consent. See id., 47 C.F.R. § 64.1200(a)(1)(iii).
“Unlike the exemptions that apply exclusively to residential lines, there is no established
business relationship or debt collection exemption that applies to autodialed calls made to
cellular phones.” Fenescey v. Diversified Consultants, Inc., 2014 WL 2526571, at *2 (M.D.
Pa. June 4. 2014) (denying a nearly identical motion to stay filed by DCI). Thus, DCI’s
argument with respect to this issue is without merit.
The second issue, whether dialing equipment must have a current capacity to generate
and dial random or sequential numbers in order to be considered an ATDS, is also without
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merit because, regardless of any decision on the issue of what constitutes an ATDS, Plaintiff
alleges, in the alternative, that DCI violated the TCPA through the use of artificial or
prerecorded messages. From the plain text of the statute, each of these violations is
independently actionable; a plaintiff may recover damages for calls made “using any
automatic telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. §
227(b)(1)(A) (emphasis added). Therefore, Plaintiff’s claim regarding the use of an artificial
or prerecorded voice is appropriately before the court, regardless of the FCC’s decision with
respect to the definition of an ATDS.
Finally, the FCC has previously held that debt collectors are not exempt from the
TCPA and that predictive dialers are considered automatic telephone dialing systems subject
to the TCPA. See Swope v. Credit Management, LP, 2013 WL 607830, at *4-*5 (E.D. Mo.
Feb. 19, 2013) (discussing same). Thus, the interests of consistency and uniformity are better
served by allowing this case to proceed based on the prior interpretations of the FCC, rather
than postponing this case for an indefinite amount of time based on the possibility that the
FCC may decide to reconsider its past positions. Further, any reconsideration by the FCC
regarding its interpretation of these provisions would likely apply prospectively. See id., see
also Meyer v. Receivables Performance Management, LLC, 2014 WL 1976664, at *1-*2
(W.D. Wash. May 14, 2014) (denying a similar motion to stay and stating: “There is no
reason to believe that new FCC rules will have any impact on this case”). Notably, Plaintiff
is seeking damages for past conduct.

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It is therefore ORDERED AND ADJUDGED that Defendant Diversified Consultants,
Inc.’s Motion to Stay (Dkt. 21) is denied.
DONE and ORDERED in Tampa, Florida on June 9, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2013\13-cv-3074.mt-stay-pendingFCC-denied.wpd

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