MORRISON C. ENGLAND, Jr., Chief District Judge.
Presently before the Court is Defendant United HealthCare Services, Inc.'s ("Defendant") Motion to Stay (ECF No. 18) this putative class action brought by Jack Matlock ("Plaintiff") under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227,
The crux of Plaintiff's complaint is that Defendant violated the TCPA when it initiated calls to his cell phone without his consent. Defendant purportedly nonetheless had the consent of the prior subscriber to Plaintiff's phone number. Unbeknownst to Defendant, that subscriber had subsequently switched carriers and his phone number was reassigned to Plaintiff. Defendant thereafter placed reminder calls to the original number to remind subscriber to get his flu shot. Plaintiff now claims that, by reaching him instead, Defendant violated 47 U.S.C. §227(b)(1)(A), which makes it unlawful for any person "to 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 an artificial or prerecorded voice" to, among other things, cellular telephones. The dispute in this case thus turns, in large part, on whether the "prior express consent of the called party" refers to the party the caller intended to reach or the actual recipient of the call.
A number of courts have issued conflicting decisions (none of which are binding on this Court) as to the meaning of the phrase "called party."
Given the pendency of the agency proceedings, Defendant seeks to stay the instant litigation under the primary jurisdiction doctrine until the FCC proceedings are resolved. The primary jurisdiction doctrine permits courts to stay litigation "pending the resolution of an issue within the special competence of an administrative agency."
The parties do not dispute that most of these factors are present here. Indeed, Plaintiff failed to address, and thus appears to concede, that the FCC has regulatory authority pursuant to a statute subjecting the industry to a comprehensive regulatory scheme that requires expertise or uniformity in administration. Plaintiff primarily opposes the stay, instead, on the basis that "called party" should correctly be interpreted to mean the subscriber to the phone line or the actual recipient of the call. According to Plaintiff, then, no stay is warranted. However, Plaintiff's argument ignores the case law on the other side of the divide finding to the contrary. It also fails to address whether this Court should entertain any good-faith arguments Defendant may eventually raise.
In sum, this Court finds that a stay is warranted because: (1) Defendant's petition is already before the FCC and comments are due in the near future; (2) judicial economy weighs against issuing a decision that may be undermined by an anticipated ruling of the regulatory body; (3) the violation alleged in this case is not ongoing so Plaintiff will suffer no further damages during a stay; and (4) this case is in the early stages of litigation, such that Plaintiff will not be prejudiced by any delay (In fact, Plaintiff does not even attempt to make such an argument here). Defendant's Motion is thus GRANTED.
For the reasons just stated, Defendant's Motion to Stay (ECF No. 18) is GRANTED. Plaintiff's pending Motion to Certify Class (ECF No. 8), currently set for hearing on May 29, 2014, is DENIED without prejudice to renewal at such time as this stay is lifted. Not later than ninety (90) days following the date this Order is electronically filed, the parties are directed to file a Joint Status Report advising the Court of the status of the proceedings before the FCC.
IT IS SO ORDERED.