On October 20, 2015, the U.S. District Court for the Eastern District of Wisconsin granted defendant Performant Technologies, Inc.’s (“Performant”) motion to continue a stay pending judicial review of the FCC’s July 10 TCPA order (previously discussed here) “in the interest of judicial economy.” Gensel v. Performant Technologies, Inc., No. 13-C-1196 (E.D. Wis. Oct. 20, 2015).
In a March 25, 2014 blog post titled “TCPA: It is Time to Provide Clarity,” Commissioner O’Reilly recognized the pressing need for clarity and called for the FCC to act “as soon as possible.” (Read entire post on the Official FCC Blog here). Commissioner O’Reilly’s comments on the past year’s dramatic increase in TCPA litigation and the significant inventory of pending petitions echoes the concerns raised by many petitioners and highlights the fact that fear of litigation is discouraging businesses from offering communications services to consumers. (Prior blog posts addressing a number of the individual petitions filed before the FCC can be found here, here, and here.) As a result, Commissioner O’Reilly points out, consumers are not receiving the “notifications and offers that they want and expect.” This outcome is inconsistent with the balance “between protecting consumers from unwanted communications and enabling legitimate businesses to reach out to consumers that wish to be contacted” that Congress sought to achieve through the TCPA, and requires the FCC to “take a hard look at its own precedent” and “tackl[e] this backlog in a comprehensive manner.”
Two days after Commissioner O’Reilly’s remarks, the FCC granted in part two petitions for expedited declaratory ruling. (The FCC’s March 27, 2014 rulings are available here and here.) The Commissioner’s blog post, in conjunction with the FCC’s recent rulings, may lend additional support to staying ongoing litigation proceedings pending agency action under the primary jurisdiction doctrine, as the Southern District of Texas and the Eastern District of California have already done. (See our posts covering these decisions here and here.)
The Eastern District of California recently granted a motion to stay proceedings under the primary jurisdiction doctrine in Matlock v. United Healthcare Servs., Inc., No. 13-2206, 2014 U.S. Dist. LEXIS 37612 (E.D. Cal. Mar. 20, 2014). It stayed the proceedings until the FCC rules on United Healthcare’s expedited petition to clarify the definition of “called party” under the TCPA’s prior express consent provision.
The Southern District of Texas recently granted a motion to stay proceedings pending a primary jurisdiction referral to the FCC in Fried v. Sensia Salon, Inc., et al., No. 4:13-cv-00312, 2013 U.S. Dist. LEXIS 168645 (S.D. Tex. Nov. 27, 2013). A copy of the decision is available here.
Sensia, a beauty salon in Houston, contracted with Textmunications, Inc., a mobile technology company, which in turn contracted with Air2Web, a mobile messaging aggregator (“MMA”), to transmit text message advertisements to Sensia’s former and current customers. Plaintiffs allege violations of the TCPA, violations of § 305-053 of the Texas Business and Commerce Code (“TBCC”), invasion of plaintiffs’ privacy, and conspiracy to violate the TCPA and TBCC.