Primary Jurisdiction Patience Prevails In Reassigned Number TCPA Case

Of late, it seems that courts have been reluctant to stay pending TCPA cases as the Federal Communications Commission (FCC) continues to consider how to address key issues opened by the ACA International decision. For example, last week in Thomas v.Smith-Palluck Assocs. Corp., 2019 U.S. Dist., LEXIS 63751, Case No. 2:17-cv-02001-MMD-CWH, April 12, 2019, the Court declined to defer to a new FCC decision on what constitutes an ATDS in part because “it is unclear when the FCC would issue new rules that would settle the question of whether the Defendant’s system at issue here is an ATDS….” It further noted that it was “also unclear whether the FCC Decision would definitively resolve all pertinent issues in this case….”

Now comes the Court in Matlock v. United Healthcare Servs., 2019 U.S. Dist. LEXIS 65149, No. 2:13-cv-02206-MCA-EFB, April 15, 2019, a case involving the defendant’s calls to subscribers who had previously provided their consent. Unfortunately, Mr. Matlock was not the “called party” who originally acquiesced to receive flu shot reminders; the original consenting party’s wireless number had been reassigned to him. His TCPA class action ensued in October of 2013.

In early 2014, United Healthcare Services (United) petitioned the FCC to clarify expeditiously who was the “called party” in such a context. The Court, “because the [alleged] violation… is not ongoing and … the case was in its early stages of litigation,” stayed the proceedings in March of 2014, pending an FCC decision on the petition. After the FCC’s Omnibus TCPA Order in 2015 and the immediate appeal thereof, the Court continued the stay. Then, the 2018 ACA International decision issued and the FCC “quickly moved to reconsider its definitions of both ‘called party’ and prior express consent.” United again asked the Court to wait until the FCC acted. And the Court this week agreed to do so.

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