United States District Court, W.D. Virginia, Roanoke Division
EDMOND M. STANLEY, JR., Plaintiff,
CAPITAL ONE FINANCIAL CORP. Defendants.
MEMORANDUM OPINION AND ORDER
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE.
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.
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 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.
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.
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.
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.
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
(1) whether the question at issue is within the conventional
experience of judges or whether it involves technical or
policy considerations within the ...