Primary Jurisdiction — Limited to Cases of First Impression or “Particularly Complicated” Issue Committed by Congress to Agency — Not Designed for Court to Obtain Agency’s “Expert Advice”

From Robinson v. Midland Funding, LLC, 2011 U.S. Dist. LEXIS 40107 (April 13, 2011):

The primary jurisdiction doctrine is applicable only if a claim "requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency." Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008) (quoting Brown v. MCI WorldCom Network Servs., 277 F.3d 1166, 1172 (9th Cir. 2002). This doctrine is not designed to allow courts to acquire expert advice from agencies whenever it is presented with an issue that is within the agency's scope of expertise. Id. Although there is no fixed formula as to when the primary jurisdiction doctrine applies, the 9th Circuit has instructed courts to invoke the doctrine where there is: (1) a need to resolve an issue that (2) Congress placed within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration. Id. at 1115. ***

Defendant asserts the primary jurisdiction doctrine applies to the case at bar, compelling the Court to stay or dismiss this action pending review by the Federal Communications Commission ("FCC") of issues addressed in its January 22, 2010 Notice of Proposed Rulemaking ("NPRM"). In the NPRM, the FCC announced that it is considering revising its TCPA [Telephone Consumer Protection Act] rules to require companies to obtain express written consent from the called party prior to placing automated, pre-recorded calls. *** Defendant concedes that the FCC's final decision on this issue would not impact this case, since any change in the rule would not apply retroactively. *** According to Defendant, however, ruling on the issue posed by the NPRM will require the FCC to clarify other issues that do impact this case, specifically, "whether the TCPA's restrictions apply to debt collectors and, if so, whether the automatic dialing equipment used by debt collectors falls within the statutory definition of 'automatic telephone dialing system." *** Because Defendant is a debt collector whom Plaintiff alleges used an automatic dialing system in violation of the TCPA, Defendant argues that adjudication of Plaintiff's claims would undermine the FCC's authority and decision making in this area. However, the issues currently before the FCC are not relevant to this action, much less dispositive of Plaintiff's claims. ***

Unlike the case in Clark where the issue in the NPRM was directly on point with the issue before the court, here, the NPRM invites comment as to whether the TCPA should be revised to "requir[e] sellers and telemarketers to obtain telephone subscribers' express written consent (including electronic methods of consent) to receive prerecorded telemarketing calls even when there exists an established business relationship between the caller and the consumer." *** Here, Plaintiff simply alleges that he did not give express consent to Defendant at all. There is no issue posed in the complaint as to the form of consent. This case is distinguishable from Clark because the issues addressed in the NPRM are different from the issue before the Court; the NPRM addresses whether to impose a requirement to obtain written consent from consumers, not whether the TCPA applies to debt collectors. The FCC has already issued a declaratory ruling stating debt collectors who make autodialed or prerecorded calls to a wireless number are responsible for any violation of the TCPA. [See Defendant's RJN, Exh. 7, ¶¶ 10 & 14.] The FCC's declaratory ruling on the issue before this Court distinguishes this case from Charvat as well because the issue here is not one of first impression and does not implicate the FCC's authority to interpret the TCPA since it has already ruled on the issue.

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