Gensel v. Performant Recovery Inc
Filing
61
ORDER signed by Judge Rudolph T. Randa on 1/28/2015. 30 Defendant's MOTION to Stay GRANTED; Final Pretrial Conference and Jury Trial CANCELLED. 38 Plaintiff's MOTION for Partial Summary Judgment DENIED without prejudice. Not later than 180 days from date of this Order parties to file joint status report advising the Court of the status of proceedings before the FCC. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LENNETT GENSEL,
Plaintiff,
-vs-
Case No. 13-C-1196
PERFORMANT TECHNOLOGIES, Inc.,
Defendant.
DECISION AND ORDER
Lennett Gensel’s cell phone provider assigned her a number that
was previously assigned to a woman who defaulted on a student loan.
Performant Technologies, Inc. repeatedly called that number in an attempt
to collect on the debt. Gensel alleges that by doing so, Performant violated
the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Gensel
moves for partial summary judgment, but Performant moves to stay
pending rulings on two petitions currently before Federal Communications
Commission (“FCC”).
The TCPA provides that certain entities must not “make any call
(other than a call made for emergency purposes or made with the prior
express consent of the called party), using any automatic telephone dialing
system or prerecorded voice … to any telephone number assigned to a …
cellular telephone service … or any service for which the called party is
charged for the call.” § 227(b)(1)(A)(iii). The term “automatic telephone
dialing system” (“ATDS”) means “equipment which has the capacity … to
store or produce telephone numbers to be called, using a random or
sequential number generator.” § 227(a)(1).
One petition asks the FCC to decide whether the TCPA applies to
non-telemarketing calling activities. In re Comm’n Innovators’ Pet. For
Declaratory Ruling (June 7, 2012) (the “CI Petition”) (asking the
Commission to “clarify, consistent with the text of the TCPA and
Congressional intent, that predictive dialers that (1) are not used for
telemarketing purposes and (2) do not have the current ability to generate
and dial random or sequential numbers, are not [ATDS] under the TCPA
and the Commission’s TCPA rules”). Another asks the FCC to “(1) confirm
that not all predictive dialers are categorically [ATDS]; (2) confirm that
‘capacity’ under the TCPA means present ability; (3) clarify that prior
express consent attaches to the person incurring a debt, and not the
specific telephone number provided by the debtor at the time a debt was
incurred;1 and (4) establish a safe harbor for autodialed ‘wrong number’
non-telemarketing calls to wireless numbers.” Petition for Rulemaking of
1
The third issue is not relevant in this case.
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ACA Int’l (January 31, 2014) (the “ACA Petition”). A ruling on the first
petition is expected before a ruling on the second.
Performant’s motion invokes the primary jurisdiction doctrine. This
doctrine “is really two doctrines.” Arsberry v. Ill., 244 F.3d 558, 563 (7th
Cir. 2001). In its “central and original form,” the doctrine applies “only
when, in a suit involving a regulated firm but not brought under the
regulatory statute itself, an issue arises that is within the exclusive
original jurisdiction of the regulatory agency to resolve, although the
agency’s resolution of it will usually be subject to judicial review.” Id. In its
“weaker sense,” the sense relevant here, the doctrine “allows a court to
refer an issue to an agency that knows more about the issue.” In re
StarNet, Inc., 355 F.3d 634, 639 (7th Cir. 2004); see also Arsberry at 563
(the doctrine “allows a federal court to refer a matter extending beyond the
‘conventional experiences of judges’ or ‘falling within the realm of
administrative discretion’ to an administrative agency with more
specialized experience, expertise, and insight’”) (quoting Nat’l Comm’n
Assoc., Inc. v. Am. Telephone & Telegraph Co., 46 F.3d 220, 222-23 (2d Cir.
1995)).
“No fixed formula exists for applying the doctrine of primary
jurisdiction. In every case the question is whether the reasons for the
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existence of the doctrine are present and whether the purposes it serves
will be aided by its application in the particular litigation.” United States v.
W. Pac. R.R. Co., 352 U.S. 59, 64 (1956). Courts consider the following
factors in making this determination: (a) whether the question at issue is
within the conventional experience of judges; (b) whether the question at
issue involves technical or policy issues within the agency’s particular field
of expertise; (c) whether a determination would involve the exercise of
agency discretion; (d) the need for a consistent and uniform rule; (e) the
likelihood of inconsistent rulings if not referred to the agency; (f) whether
the issue has already been before the agency; (g) whether judicial economy
is served by having the agency resolve the issue; and (h) whether the
referral will result in substantial delay and added expense. Gilmore v. S.W.
Bell Mobile Sys., LLC, 210 F.R.D. 212, 221 (N.D. Ill. 2001).
The calls in this case were related to debt collection, and the
application of the TCPA to such calls is far from clear. See Passero v.
Diversified Consultants, Inc., No. 13-CV-338C, 2014 WL 2257185, at *2-3
(W.D.N.Y. 2014) (noting split of authority on the issue). Gensel argues that
the FCC settled the issue in a 2008 ruling, but subsequent inconsistent
rulings demonstrate that it did nothing of the sort. Hence, the request for a
ruling in the CI Petition. Similarly, both petitions seek clarity on the issue
-4-
of “capacity.” Higginbotham v. Diversified Consultants, Inc., No. 13-2624JTM, 2014 WL 1930885, at *3 (D. Kan. May 14, 2014) (“Neither the TCPA
nor previous FCC orders address the meaning of ‘capacity,’ specifically,
whether it should be interpreted broadly to mean potential capacity or
narrowly to mean present capacity”). This is another issue at play in the
instant case. See Performant’s Additional Statement of Facts, ¶ 6 (“The
Avaya and Soundbite systems (the systems used to call the subject
number) did not have the capacity to randomly or sequentially call phone
numbers, nor do they have such capacity now”). Thus, a stay is warranted
pending the outcome of either or both petitions. See Hurrle v. Real Time
Resolutions, Inc., No. C13-5765 BHS, 2014 WL 670639 (W.D. Wash. Feb.
20, 2014) (granting stay pending CI Petition); Wahl v. Stellar Recovery,
Inc., No. 14-cv-6002-FPG, 2014 WL 4678043, at *2 (W.D.N.Y. Sept. 18,
2014) (granting stay pending CI and ACA Petitions).
The ACA Petition also seeks clarity on a troubling aspect of this
case: whether there should be a safe harbor for autodialed “wrong number”
calls. Instead of simply answering the phone and telling Performant that
she wasn’t the person they were trying to reach, Gensel (on the advice of
counsel) documented all the calls she received for a lengthy period of time.
This was a transparent attempt to accumulate damages – at $500 per
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violation, Gensel is asking for $94,000 even before taking the issue of treble
damages to the jury. Since the TCPA is a strict liability statute, the
absence of a safe harbor encourages such opportunistic behavior. Strict
liability is particularly inappropriate here because Performant stopped
calling Gensel once she finally answered the phone and told them they had
the wrong number. Other courts have granted stays in “wrong number”
cases in deference to the ACA Petition. See, e.g., Barrera v. Comcast
Holdings Corp., No. 14-cv-00343-TEH, 2014 WL 1942829 (N.D. Cal. May
12, 2014). The behavior of litigants such as Gensel may inform the FCC’s
determination regarding a safe harbor provision.
In sum, a stay of these proceedings under the primary jurisdiction
doctrine will promote uniformity in the administration of the TCPA.
Instead of furthering a split of authority regarding the issues presented by
Gensel’s complaint, it is more efficient to simply wait for the FCC to do
what it has already been asked to do. The Court will be in a better position
to proceed to judgment with definitive guidance from the FCC. CE Design,
Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 446 (7th Cir. 2010)
(holding that the FCC’s orders relating to the TCPA are binding under the
Hobbs Act).
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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1.
Performant’s motion to stay [ECF No. 30] is GRANTED. The
final pretrial conference and trial dates are CANCELED;
2.
Gensel’s motion for partial summary judgment [ECF No. 38] is
DENIED without prejudice; and
3.
Not later than 180 days following the date of this Order, the
parties are directed to file a joint status report advising the
Court of the status of the proceedings before the FCC.
Dated at Milwaukee, Wisconsin, this 28th day of January, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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