Time For A Timeout In TCPA Litigation

In TCPA Blog’s latest Law360 column, Mike Daly, Meredith Slawe, and Dan Brewer discuss why courts should temporarily stay TCPA cases pending the regulatory appeal of the FCC’s July 10, 2015 Order, which is set for oral argument before the United States Court of Appeals for the D.C. Circuit on October 19, 2016. The article addresses the flaw in plaintiffs’ argument that they are prejudiced while awaiting a decision:

Plaintiffs in TCPA actions have opposed requests for stays by arguing that the FCC has already decided the dispositive issues, that the appellate ruling will not be binding beyond the D.C. Circuit, and that a stay will result in an indeterminate delay in the proceedings. Although those arguments have resonated with some courts, they do not withstand scrutiny. For example, the indeterminate duration of a stay should not weigh against issuing one because that is true of most stays, and in any event it can be easily addressed by having the parties submit status reports on the progress of the appeal. Nor should the passage of time in and of itself constitute the sort of “prejudice” that weighs against issuing a stay, as that objection could be made to any stay in any case. Cf. Phone-Tel Commc’ns, Inc. v. AT&T Corp., 100 F. Supp. 2d 313, 321 (E.D. Pa. 2000) (rejecting objections to delay of stay “because application of the doctrine of primary jurisdiction is not discretionary”); Fed. Power Comm’n v. La. Power & Light Co., 406 U.S. 621, 647 (1972) (stating that courts are “obliged to defer” to regulatory process while “issue brought before a court is in the process of litigation through procedures originating in the [agency].”). In any event, with oral argument now set for Oct. 19, 2016, concerns about the passage of time should be diminished if not extinguished.

The article goes on to examine other flaws in plaintiffs’ arguments that the cases should continue, and why temporarily staying TCPA actions is the most practical approach for the courts.

Click here to read the full article.