LOEBENSTEIN v. CHASE BANK
MEMORANDUM OPINION AND ORDER that Defendant's Motion to stay this action [Dkt. No. 9 ] is DENIED. Signed by Magistrate Judge Douglas E. Arpert on 7/22/2015. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
: Civil Action No. 15-745 (PGS)(DEA)
ARPERT, Magistrate Judge
This matter comes before the Court on a Motion by Defendant Chase Bank (“Defendant”
or “Chase”) to stay this action until the Federal Communications Commission (the “FCC”)
issues opinions on certain pending Petitions which Defendant contends will decide an issue
central to this action. See Dkt. No. 9. Plaintiff opposes Defendant’s Motion. See Dkt. No. 10. For
the reasons set forth below, Defendant’s Motion to stay this action is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff’s Complaint was filed on February 2, 2015 and alleges that Defendant violated
the Telephone Consumer Protection Act (“TCPA”). See Dkt. No. 1. Plaintiff claims that over a
four year period, Defendant called and sent “at least several dozen” text messages to her cellular
telephone via an automatic telephone dialing system (“ATDS”). Id. at ¶ 7. Specifically, Plaintiff
alleges that Chase sent “numerous” text messages to her cellular phone providing account
information, such as balance and transaction details, related to a Chase bank account that did not
belong to her. Dkt. No. 10 at p. 7. According to Plaintiff, these calls and texts were made without
her permission and were intended for the third party owner of the Chase account. Id.
Defendant contends that Plaintiff’s allegations describe “wrong party calls”, which can
arise when a company obtains the telephone number at issue from one of its customers who, after
providing the number to the company, and unbeknownst to the company, ceases use of the
telephone number. See Dkt. No. 9. The telephone carrier, again unbeknownst to the company,
then re-assigns the number to another person who receives the wrong party calls. Id.
Defendant seeks a stay largely on the grounds of primary jurisdiction, citing several
Petitions that have since been addressed by the FCC. Defendant asserts that an FCC order
regarding the petitions could “have substantial, if not dispositive, impact on this litigation.” Dkt.
No. 9. In opposition, Plaintiff contends that primary jurisdiction, and deferral to the FCC, is not
necessary to decide any issues in this case. See Dkt No. 10. Plaintiff further contends that
awaiting an FCC decision could unduly delay resolution of the action, and that any FCC decision
may not impact this action at all. See Dkt. No. 10.
A. The Doctrine of Primary Jurisdiction
The doctrine of primary jurisdiction applies where a claim is originally cognizable in the
courts but “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.” United
States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956). “[I]n such a case the judicial process is
suspended pending referral of such issues to the administrative body for its views.” Id. Courts
have invoked the primary jurisdiction doctrine “to advance regulatory uniformity,” “to answer a
question … within the agency’s discretion,” and “to benefit from technical or policy
considerations within the agency’s … expertise.” Charvat v. EchoStar Satellite, LLC, 630 F.3d
459, 466 (6th Cir. 2010) (invoking primary jurisdiction doctrine in TCPA case) (internal
quotation marks omitted); Richmond Bros. Records, Inc. v. U.S. Spring Communications, Co.,
953 F.2d 1431, 1435 (3d. Cir. 1991) (primary jurisdiction particularly appropriate where “the
issue involves technical questions of fact uniquely within the expertise and experience of the
Importantly, “[n]o fixed formula exists for applying the doctrine….” United States v. W.
Pac. R.R. Co., 352 U.S. 59, 64 (1956). However, the Third Circuit has articulated four factors
useful in determining whether a court should abstain on the basis of primary jurisdiction. Those
(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.
Raritan Baykeeper v. NL Indus., Inc., 660 F.3d 686, 691 (3d Cir. 2011).
Where the doctrine of primary jurisdiction does apply, it “requires the court to enable a
‘referral’ to the agency, staying further proceedings so as to give the parties reasonable
opportunity to seek an administrative ruling.” Reiter v. Cooper, 507 U.S. 258, 268 (1993).
B. The Telephone Consumer Protection Act
The TCPA was enacted in response to “[v]oluminous consumer complaints about abuses
of telephone technology” such as “computerized calls dispatched to private homes[,]” and “bans
certain invasive telemarketing practices.” Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 744
(2102). In relevant part, the TCPA prohibits calling any cellular phone using any automatic
dialing system or an artificial or prerecorded voice, unless the call is for emergency purposes or
if the call is “made with the prior express consent of the called party[.]” 47 U.S.C.A. § 227
(b)(A)(iii). The TCPA creates a private right of action for affected consumers, and allows them
to recover the greater of their actual monetary loss or $500 for each violation. Id. § 227(b)(3).
“[P]rior express consent by the called party” is a safe harbor against liability under the TCPA. Id.
The term “called party” has been subject to some degree of interpretation, stemming from
the increasing trend of cell phone numbers being reassigned from one consumer to another. A
caller may have permission to call a consumer at a given cell phone number, but if that number is
reassigned to another customer, the caller may be unwittingly calling a new, non-consenting
party. These so called “wrong party calls” have been the issue of litigation in several cases. The
crux of the issue has been whether the “called party” is the intended recipient of the call, or the
actual recipient of the call. The circuits that have issued decisions on the matter have generally
favored the latter interpretation. See, e.g., Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242,
1252 (11th Cir. 2014) (rejecting argument that the “intended recipient” is the “called party”
referred to in 47 U.S.C. § 227(b)(1)(A)); Soppett v. Enhanced Recovery Co., LLC, 679 F.3d 637,
643 (7th Cir. 2012) (“We conclude that ‘called party’ in § 227(b)(1) means the person
subscribing to the number at the time the call is made.”).
However, some district courts have stayed actions related to the term, pending the
outcome of Petitions submitted to the FCC. See, e.g., Higginbotham, 2014 U.S. Dist. LEXIS
85584 (relying on primary jurisdiction doctrine to stay the case until the FCC proceedings are
resolved); Gensel v. Performant Tech., Inc., NO. 13-C-1196, 2015 U.S. Dist. LEXIS 9736, at *1
(E.D. Wis. Jan. 28, 2015) (staying action involving “wrong party calls” pending FCC’s ruling on
Petitions). The first such Petition, filed on January 16, 2014 by United Healthcare, sought
clarification on the applicability of the TCPA to “informal, non-telemarketing autodialed and
prerecorded calls to wireless numbers for which valid prior express consent has been obtained
but which, unbeknownst to the calling party, have subsequently been reassigned from one
wireless subscriber to another.” (Request for Judicial Notice (“RJN”) Ex. A (“United Healthcare
Petition”) at 1.).
On June 18, 2015 the FCC provided some degree of clarity, when it adopted a package of
declaratory rulings which were summarized in a press release. In relevant part, the release states
that “Reassigned Numbers Aren’t Loopholes – If a phone number has been reassigned,
companies must stop calling the number after one call.” Press Release, Federal Communications
Commission, FCC Strengthens Consumer Protections against Unwanted Calls and Texts (June
18, 2015), (“FCC June 18, 2015 Declaratory Rulings Press Release.”). In the press release, the
FCC “embrac[ed] the opportunity afforded by the 21 requests for clarification of the law to
clearly stand with consumers against unwanted calls.” Id.
According to Plaintiff’s Complaint, “Defendant was attempting to reach a third party
with its text message updates regarding that third party’s account.” Dkt. No. 1 at ¶ 10. This likely
places the case squarely within the realm of “wrong party” calls. While there may have been
some benefit in granting Defendant’s Motion prior to the recent FCC ruling, the Defendant’s
purported concerns have been addressed and any benefit to a stay is no longer significant.
Accordingly, because the Court finds that Defendant’s request for a stay is moot in light
of the FCC’s recent ruling on this issue, the Court declines to invoke the doctrine of primary
jurisdiction in this matter. Under the first two factors, the Court finds that while the question at
issue is squarely within the FCC’s expertise and discretion, the Court now has the benefit of the
FCC’s ruling on this subject and therefore a suspension of the judicial process in this matter is
With respect to the third factor; the danger of inconsistent rulings, especially regarding
“wrong party calls”, has been substantially diminished by the recent FCC ruling. It is likely that
many courts will rely on the recent decision for guidance in “wrong party calls”. Therefore, the
third factor additionally weighs against an exercise of primary jurisdiction. Likewise, the fourth
factor no longer favors primary jurisdiction since a prior application to the agency has been
made, and addressed. Thus, every one of the Raritan Baykeeper factors suggests that invoking
the doctrine of primary jurisdiction is improper in this case.
Defendant’s grounds for staying this action are no longer pertinent and there is no benefit
to be garnered from staying this action because the relevant Petitions have been addressed by the
FCC. While it remains to be seen whether Defendant was correct in stating that “resolution of …
these submissions to the FCC will have substantial, if not dispositive impact on this litigation”
the submissions have nonetheless been resolved. While at this juncture the Court makes no
finding on the merits of Plaintiff’s claims, it is evident that the FCC has provided the level of
guidance it deems necessary to address and clarify the issues presented in the Petitions relied on
by Defendant in its Motion to stay. Accordingly, Defendant’s Motion for a stay of this matter is
CONCLUSION AND ORDER
The Court having considered the papers submitted pursuant to Fed. R. Civ. P. 78, and for
the reasons set forth above;
IT IS on this 22nd day of July, 2015,
ORDERED that Defendant’s Motion to stay this action [Dkt. No. 9] is DENIED.
/s/ Douglas E. Arpert
DOUGLAS E. ARPERT
United States Magistrate Judge
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