Wolkenstein v. Synchrony Bank

Filing 12

MEMORANDUM (Order to follow as separate docket entry). Having reviewed the parties pleadings and briefs along with other documents provided by the Defendant, the Court concludes that all four elements of the aforementioned test weigh in favor of sta ying this matter pending the decision of the District of Columbia Court of Appeals in ACA v. Synchrony Bank. An Order consistent with this determination will be filed contemporaneously. re 7 MOTION to Stay Proceedings Pending Ruling filed by Synchrony Bank Signed by Honorable Richard P. Conaboy on 3/22/17. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Louis Wolkenstein

:

Plaintiff,

: Case No. 3:16-CV-2036

v.

:(Judge Richard P. Conaboy)

Synchrony Bank

:

Defendant.

:

_________________________________________________________________
Memorandum
We consider here Defendant Synchrony Bank’s Motion to Stay
(Doc. 7) this case pending the decision of the District of Columbia
Court of Appeals in the case of ACA International v. Federal
Communications Commission (15-CV-1211, D.C. Circuit, July 13,
2015).

The Defendant contends that this case will clarify the

FCC’s definitions of “capacity” and “automatic telephone dialing
system” (“ATDS”), in the context of the Telephone Consumer
Protection Act (“TPCA”).1

The FCC’s current definition of an ATDS

is set forth in its rule-making publication entitled “In re Rules
and Regulations Implementing the Telephone Consumer Protection Act
of 1991" published July 10, 2015, hereinafter the “Order”.
The Order’s avowed purpose may be gleaned from the FCC’s own
description:

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The statutory definition of an ATDS is “...equipment which has the capacity- - (a) to store
or produce telephone numbers to be called using a random or sequential number generator; and (B)
to dial such numbers.” See TCPA, 47 U.S.C. Section 227.
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Month after month, unwanted robocalls and texts,
both telemarketing and informational, top the list
of consumer complaints received by the Commission.
The Telephone Consumer Protection Act (TCPA) and our
rules empower consumers to decide which robocalls
and text messages they receive, with heightened
protection to wireless consumers, for whom robocalls
can be costly and particularly intrusive.

Beyond

protecting consumers, federal law and our rules
protect Public Safety Answering Points from
robocalls that can tie up critical first responder
resources.

With this Declaratory Ruling and Order,

we act to preserve consumers’ rights to stop
unwanted robocalls, including both voice calls and
texts, and thus respond to the many who have let us,
other federal agencies, and states know about their
frustration with robocalls.

(Reference to footnotes

omitted).

See Order at page 4 as cited at Doc. 9, Exhibit B.
The term “robocalls” includes calls made with an automatic
telephone dialing system or by pre-recorded artificial voice.
Id.
This case turns on the question whether a system that

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does not have the “present ability” to dial random and
sequential numbers is still an “ATDS”, and hence subject to
liability under the TCPA’s enforcement provisions, if it would
have the “capacity”, after modification, to do so.

The Order

determined that calls made from a system having the capacity
to function as an ATDS are actionable even though the system
involved lacked the present ability to do so automatically.
Defendant’s motion is premised: (1) on its representation
that its calling system lacks the present ability to dial
randomly or sequentially and (2) its assertion that the FCC
exceeded its rule-making authority when crafting the Order to
subsume within the definition of ATDS some systems that lack
the present ability to automatically dial calls randomly or
sequentially.

Defendant has supplied this Court with ACA

International’s Amended Petition for Review of the Order in
the D.C. Circuit.

Having read the petition for review, the

Court must agree that the question raised by ACA International
in its petition for review has direct bearing on the ultimate
decision in this case.
Plaintiff argues that a stay is inappropriate because:
(1) the Defendant has not taken the position that its
telephone system “lacks the present capacity to dial telephone
numbers without human intervention” and (2) the portion of the
FCC’s Order challenged in ACA, supra, is unlikely to come into

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play in this case.

(Doc. 10 at 3).

Having read the petition

for review in ACA and the pleadings and briefs filed by the
parties in this case, the Court cannot agree.

Defendant’s

Answer specifically denies Plaintiff’s allegation that
Defendant used an ATDS when calling him.2

(Doc. 6 at P¶ 13).

By reason of this denial, the question of what Congress meant
by the phrase “automatic telephone dialing system”, a primary
focus of ACA, supra, is integral to this case.

Clearly, a

fundamental hurdle in any TCPA case is proof that the
Defendant used an ATDS.

Because the ACA decision will assess

what exactly constitutes an ATDS, a subject pivotal to this
case, and because there is no direct guidance from any other
circuit on this question at this time, we deem it prudent to
await the decision of the D.C. Circuit before requiring the
parties to expend additional effort and expense in this
matter.
A district court enjoys broad discretion to stay
proceedings incident to its inherent power to control its own
docket.

Clinton v. Jones, 520 U.S. 681, 706 (1997).

Even so,

in the process of exercising that discretion, a district court
must weigh four factors: (1) the length of the requested stay;

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Also, Plaintiff’s Reply Brief includes as an exhibit the affidavit of Tim Ware, the Outbound
Call Technology Manager at Synchrony Bank. The Ware Affidavit (Doc. 11-1) specifically states
that Synchrony’s dialing system does not have the present capacity to store or produce telephone
numbers using an autodialer.
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(2) the “hardship or inequity” that the movant will suffer
absent a stay; (3) any injury the stay will inflict on the
non-movant; and (4) whether a stay will simplify issues and
promote judicial economy.

See Rajput v. Synchrony Bank, 2016

WL 6433134 at 2 (M.D. Pa. October 31, 2016)(citing numerous
other cases in the Middle District of Pennsylvania).

Having

reviewed the parties’ pleadings and briefs along with other
documents provided by the Defendant, the Court concludes that
all four elements of the aforementioned test weigh in favor of
staying this matter pending the decision of the District of
Columbia Court of Appeals in ACA v. Synchrony Bank.

An Order

consistent with this determination will be filed
contemporaneously.

BY THE COURT

S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: March 22, 2017

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