Nack v. Walburg

Filing 61

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants motion to stay is GRANTED. (Doc. No. 55.) IT IS FURTHER ORDERED that this case is STAYED until final rulings are issued by the FCC on Defendants Petition for Declaratory Ruling and/or Waiver, and on any appeals filed in connection with the ruling. Defendant shall forthwith notify the Court of the FCCs ruling and any appeal filed in connection thereto. IT IS FURTHER ORDERED that the Clerk of Court shall administratively close this matter. Signed by District Judge Audrey G. Fleissig on 9/12/2013. (KSH)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL R. NACK, Individually, and on
behalf of all others similarly-situated,
Plaintiffs,
v.
DOUGLAS PAUL WALBURG,
Defendant.

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No. 4:10CV00478 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s motion to stay (Doc. No. 55).
After careful consideration, the Court will grant Defendant’s motion.
Plaintiff claimed in this action that Defendant violated the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227, by faxing Plaintiff advertisements that did not
have an opt-out notice. Plaintiff conceded that the faxes were sent with Plaintiff’s
permission. On January 28, 2011, this Court granted Defendant summary judgment,
concluding that there was no private cause of action under the TCPA for failing to
include an opt-out notice on an advertising fax that was not “unsolicited,” but rather was
sent after receiving the express approval of the recipient; and that an FCC regulation
requiring an opt-out notice only applied to unsolicited faxes. Nack v. Walburg,
4:10CV00478 AGF, 2011 WL 310249 (E.D. Mo. Jan. 28, 2011).
On appeal, the Eighth Circuit reversed, based on the FCC’s interpretation of its
regulation as applying to permissive, as well as unsolicited, faxes. Nack v. Walburg, 715

F.3d 680 (8th Cir. 2013). The Appellate Court noted that it found it “questionable
whether the regulation at issue [as applied to solicited faxes] properly could have been
promulgated under the statutory section that authorizes a private cause of action,” but
based its reversal on deference, under the Hobbs Act, 28 U.S.C. § 2342, et seq., to the
FCC’s interpretation of its own regulation. Id. at 682.
The Eighth Circuit also noted that Defendant had not attempted to file an
administrative petition with the FCC challenging the regulation; thus the Court declined
to consider “whether a refusal of the agency to consider a substantive challenge to the
regulation would allow this court to exercise jurisdiction over such a challenge.” Id. at
686 n.2. The Court concluded its opinion as follows: “On remand, the district court may
entertain any requests to stay proceedings for pursuit of administrative determination of
the issues raised herein.” Id. at 686.
In line with the Eighth Circuit’s suggestion, Defendant now seeks a stay in order
to pursue administrative remedies through a Petition for Declaratory Ruling and/or
Waiver that Defendant filed with the FCC on August 19, 2013. Defendant states that he
further intends to file a Petition for Writ of Certiorari in the United States Supreme Court
with respect to the Eighth Circuit’s decision. In opposition to the motion to stay, Plaintiff
argues that entering a potentially lengthy stay would unduly prejudice the class,
especially since the FCC has already made its position clear both in its regulations and in
its amicus brief to the Eighth Circuit.
Following the Eighth Circuit’s decision in Nack, another court in this District
recently granted a stay pending administrative proceedings in a similar TCPA case. St.
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Louis Heart Ctr., Inc. v. The Forest Pharm., Inc., 4:12CV02224 JCH (E.D. Mo. July 17,
2013). In light of the Eighth Circuit’s suggestion, this Court will follow suit. The Court
is not persuaded that Plaintiffs will be unduly prejudiced by such a stay.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to stay is GRANTED.
(Doc. No. 55.)
IT IS FURTHER ORDERED that this case is STAYED until final rulings are
issued by the FCC on Defendant’s Petition for Declaratory Ruling and/or Waiver, and on
any appeals filed in connection with the ruling. Defendant shall forthwith notify the
Court of the FCC’s ruling and any appeal filed in connection thereto.
IT IS FURTHER ORDERED that the Clerk of Court shall administratively close
this matter.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 12th day of September, 2013.

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