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Stanley v. Capital One Financial Corp.

United States District Court, W.D. Virginia, Roanoke Division

January 8, 2020

EDMOND M. STANLEY, JR., Plaintiff,
v.
CAPITAL ONE FINANCIAL CORP. Defendants.

          MEMORANDUM OPINION AND ORDER

          ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE.

         Plaintiff Edmond Stanley, Jr. filed a complaint in this court alleging that Capital One Financial Corp. (Capital One) violated the Federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, by repeatedly calling Stanley's cell phone to collect a debt that arose from identity theft. Stanley asserts that Capital One repeatedly called him using an “automated telephone dialing system” (ATDS), which the TCPA defines as “equipment which has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). He further asserts that Capital One utilized an artificial or prerecorded voice in violation of § 227(b)(1)(A). Id. § 227(b)(1)(A) (“It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States-(A) to make any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . .”). Capital One continued making these calls despite Stanley's requests for the calls to stop.

         This matter is currently before the court on Capital One's motion to stay the case pending a ruling either from the Federal Communications Commission (FCC) or the United States Supreme Court[1] regarding the correct interpretation and application of the TCPA's definition of an ATDS. (Dkt. No. 15.) For the reasons set forth below, the court will deny Capital One's motion without prejudice.

         I. BACKGROUND

         In 2015, the FCC released a ruling that sought to clarify certain portions of the TCPA, including the definition of an ATDS. The D.C. Circuit vacated that ruling in 2018, in a decision binding on this court. ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018); see also King v. Time Warner Cable Inc., 894 F.3d 473, 476 n.3 (2d Cir. 2018) (“When agency regulations are challenged in more than one court of appeals, as they were in the present case, 28 U.S.C. § 2112 requires that the multidistrict litigation panel consolidate the petitions and assign them to a single circuit. Challenges to the 2015 Order were assigned to the D.C. Circuit, which thereby became ‘the sole forum for addressing . . . the validity of the FCC's' order.” (citing GTE S., Inc. v. Morrison, 199 F.3d 733, 743 (4th Cir. 1999))). Since 2018, courts remain split regarding the proper definition of an ATDS.

         Because Stanley's complaint alleges a violation of the TCPA, Capital One asserts that a key issue in this case is the proper interpretation of the TCPA's definition of an ATDS. It notes that two events prompted the present motion. First, the FCC has issued a public notice seeking comments on the statutory definition of an ATDS. According to Capital One, the FCC's comment period closed on October 24, 2018. Second, the defendant in Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019), has filed a petition for a writ of certiorari which is currently pending before the Supreme Court. Accordingly, Capital One requests a stay pending either guidance from the FCC or resolution of the Duguid appeal if the petition is granted.

         II. DISCUSSION

         Capital One asserts two possible avenues to staying Stanley's case: the primary jurisdiction doctrine or a stay pursuant to Landis v. N. Am. Co., 299 U.S. 248, 254 (1936), and the court's inherent authority.

         A. Primary Jurisdiction

         In Global Crossing Telecommunications, Inc. v. nTelos Telephone, Inc., No. 7:11-cv-00503, 2012 WL 4459946 (W.D. Va. June 1, 2012), this court discussed the primary jurisdiction doctrine as follows:

The doctrine of primary jurisdiction enables a court, under appropriate circumstances, to “refer” certain issues to an administrative agency and then stay the proceedings or dismiss the case without prejudice. See Reiter v. Cooper, 507 U.S. 258, 268-69 (1993). The doctrine “allows a federal court to refer a matter extending beyond the ‘conventional experiences of judges' or ‘falling within the realm of administrative discretion' to an administrative agency with more specialized experience, expertise, and insight.” Nat'l Commc'ns Ass'n v. AT & T, 46 F.3d 220, 222-23 (2d Cir. 1995) (quoting Far E. Conference v. United States, 342 U.S. 570, 574 (1952)). Generally, courts apply primary jurisdiction in cases involving technical, intricate questions of fact and policy that Congress has assigned to a particular agency. Id. There is, however, “no fixed formula . . . for applying the doctrine of primary jurisdiction.” Envtl. Tech Council v. Sierra Club, 98 F.3d 774, 789 (4th Cir. 1996) (quoting United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956)).
To focus the analysis, courts often employ a four-factor test:
(1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the ...

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