STIPULATION AND [PROPOSED] ORDER REGARDING STAY OF PROCEEDINGS AND CASE SCHEDULE

VINCE CHHABRIA, District Judge.

Plaintiff Beverly Nunes ("Plaintiff") and Defendant Twitter, Inc. ("Twitter") (collective-ly, "the Parties") hereby request an amendment to the Stipulated Order Continuing Stay of Proceedings and Modifying Case Schedule entered by the Court on July 10, 2015 (Dkt. 58) (the "Ju-ly 10 Stipulation and Order"). In support of that request, the parties agree as follows:

1. The July 10 Stipulation and Order was based in part on the pendency of multiple petitions before the FCC seeking rulings on issues pertaining to the Telephone Consumer Protection Act ("TCPA") — the statute at issue in this action. The FCC voted on those petitions on June 18, 2015, and the FCC released its written Declaratory Ruling and Order, FCC 15-72, on July 10, 2015 (the "FCC Order"). Among other rulings pertinent to this action, the FCC interpreted the terms "automatic telephone dialing system," and "prior express consent of the called party." Those and other aspects of the FCC Order are the subject of multiple appeals that have been consolidated in the U.S. Court of Appeals for the District of Columbia. See ACA Int'l v. FCC, No. 15-1211 (D.C. Cir.) (consolidated with Nos. 15-1214, 1218, 1244, 1278).

2. The FCC Order also discusses the issue of who can be deemed to have made calls within the meaning of the TCPA so as to face potential TCPA liability for those text messages. Twitter believes that, based on the FCC Order, it cannot be deemed to have made text message calls within the meaning of the TCPA and is therefore absolved of liability in this case. Twitter also contends that it is immune from liability as an interactive computer service provider under the Communications Decency Act ("CDA"), 47 U.S.C. §230(c)(1). Plaintiff disagrees and believes that under the FCC Order and existing law Twitter is liable for making text message calls within the meaning of the TCPA. The Parties do agree, however, that whether Twitter made the text message calls within the meaning of the FCC's Order and the TCPA, and whether §230(c) affords immunity to Twitter, are questions that can be brought before the Court on summary judgment motions with what they anticipate will be minimal discovery and/or stipulated facts.

3. Given the potentially dispositive nature of these issues, and in light of the uncertainty created by the pending appeals of the FCC Order on other issues in the case, the Parties agree that the case should proceed at this time only with respect to the maker-of-the call and §230(c) issues. With respect to issues involving an "automatic telephone dialing system," and "prior express consent of the called party," the case should be stayed pending the FCC Order appeals.

THE PARTIES THEREFORE STIPULATE to amend the July 10 Stipulation and Order through their undersigned counsel, subject to the Court's approval, as follows:

1. The Parties shall proceed with discovery limited to the issues of whether Twitter made the text message calls within the meaning of the FCC's Order and the TCPA and the asserted immunity under §230(c) based on the existing case schedule entered on July 10, 2015: Discovery on these issues shall be completed by January 13, 2016; Initial Expert Witness statements shall be submitted by January 29, 2016; Rebuttal Expert Witness statements shall be sub-mitted by February 12, 2016; Motions for Summary Judgment on issue of whether Twitter made text message calls shall be heard on June 2, 2016 at 10:00 a.m. The Parties shall work in good faith to stipulate to the facts pertinent to these motions.

2. The stay of proceedings in the matter otherwise shall remain in place pending the FCC Order appeal. Should the case continue following resolution of the contemplated summary judgment motions, the Parties will meet and confer regarding an appropriate schedule.

PURSUANT TO STIPULATION, AND GOOD CAUSE APPEARING, IT IS SO ORDERED.