United States District Court, M.D. North Carolina
PAMELA F. BEILER, Plaintiff,
GC SERVICES L.P., Defendant.
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court is the motion of Defendant GC Services Limited Partnership ("GCS") to stay this case under the primary jurisdiction doctrine. (Doc. 20.) Plaintiff Pamela F. Beiler filed a brief in opposition to this motion. (Doc. 25.) GCS did not file a reply brief. Having considered the briefs and attached exhibits, including the various petitions filed with the Federal Communications Commission ("FCC"), the court declines to stay this matter at this time.
The facts as alleged in the complaint and exhibits attached to Beiler's brief in this matter tend to show the following.
Beiler owns two cell phones: one she uses as her own, and the other she provided to her husband, Scott Foster, for his own personal use. (Doc. 25-1 ¶ 4; Doc. 25-2 ¶ 4.) Beiler is the sole subscriber, through Verizon Wireless, for the phone numbers assigned to each phone. (Compl. ¶ 26.) Unknown to Beiler, Foster applied for two credit cards. (Id. ¶ 20.) When he defaulted on both, GCS was engaged to collect on the debts. (Id. ¶ 21.) GCS then allegedly called both Beiler and her husband's cell phones over three hundred times, trying to collect on the debts. (Id. ¶ 25.) These calls were allegedly made by GCS using an automatic telephone dialing system ("ATDS"). (Id. ¶ 27.)
Beiler brings this lawsuit under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., alleging in count one that GCS unlawfully called her cell phones using an ATDS, and in count two that GCS unlawfully called her cell phones using an artificial or prerecorded voice. (Compl. ¶¶ 45-54.) GCS answered, denying these allegations and that it used an ATDS or artificial voice to call Beiler's phones. (Am. Answer ¶¶ 27-28.) GCS now asks this court to stay these proceedings, pending a referral of certain matters to the FCC, under the primary jurisdiction doctrine.
The litigants have followed up the briefing on the motion to stay with various other filings. GCS filed a suggestion of subsequently decided authority. (Doc. 27.) Beiler has moved to strike this suggestion. (Doc. 28.) Beiler then filed a notice of the withdrawal of the Communication Innovators petition (Doc. 30), considered below, which is mostly redundant with GCS's suggestion of subsequently decided authority that Beiler has moved to strike. Beiler has also filed her own suggestion of subsequently decided authority. (Doc. 31.)
A. The Primary Jurisdiction Doctrine
The primary jurisdiction doctrine gives federal courts discretion to "refer" a matter to a federal agency, "staying further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling." Reiter v. Cooper , 507 U.S. 258, 268 (1993). Despite the doctrine's name, a stay under the primary jurisdiction doctrine does not defeat a court's jurisdiction; instead, the court has the authority to retain jurisdiction pending some resolution by the agency, or, "if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice." Id. at 268-69.
The primary jurisdiction doctrine serves to promote a "proper" relationship "between the courts and administrative agencies charged with particular regulatory duties." United States v. W. Pac. R.R. Co. , 352 U.S. 59, 63 (1956). The doctrine coordinates the actions of the judicial and executive branches "by taking advantage of agency expertise and referring issues of fact not within the conventional experience of judges or cases which require the exercise of administrative discretion." Envtl. Tech. Council v. Sierra Club , 98 F.3d 774, 789 (4th Cir. 1996).
The decision to refer a matter under the doctrine rests on the particular circumstances of a specific case. As the Supreme Court has explained, "No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation." W. Pac. R.R. Co. , 352 U.S. at 64. The Court has previously stressed two factors as helpful in the calculus: "the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions" as well as "the expert and specialized knowledge of the agencies involved." Id .; accord Bussian v. DaimlerChrysler Corp. , 411 F.Supp.2d 614, 627 (M.D. N.C. 2006). Given the fluidity in the doctrine, decisions to refer a matter are reviewed for abuse of discretion. Envtl. Tech. Council , 98 F.3d at 789 n.24.
B. The Petitions for FCC Rulemaking
In support of its argument for a stay, GCS primarily asks this court to consider four petitions that have already been filed with the FCC seeking rule-making on specific issues by that agency. Some courts have favored referral when a matter has already been submitted to the agency. ...