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A Primary Jurisdiction Nightcap: Primary Jurisdiction Also Applies to Fact-Specific Statutory Interpretation

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As you all know, the primary jurisdiction doctrine and its importance as a defendant’s potentially crucial companion on a journey through TCPAland has been covered here before, but that importance was again on full display in a recent case out of the District Court for the District of Maryland.

The doctrine of primary jurisdiction “is a doctrine specifically applicable to claims properly cognizable in court that contain some issue within the special competence of an administrative agency. It requires the court to enable a ‘referral’ to the agency, staying further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling.”  Eric B. Fromer Chiropractic v. Inovalon Holdings, No. GJH-17-3801, 2018 U.S. Dist. LEXIS 150072 (D. Md. September 4, 2018) (“Fromer Chiropractic”), quoting Reiter v. Cooper, 507 U.S. 258, 268 (1993).  As Eric succinctly put it in the context of the FCC’s Public Notice earlier this year seeking comment on the scope and architecture of the TCPA:

Ultimately the primary jurisdiction doctrine is a rule of common sense. If an agency is set to resolve a disputed issue of statutory interpretation that will be binding across the country, why would a court jump the gun and resolve that same issue for itself before the agency has its chance to speak? Its simply a bad idea, and the primary jurisdiction doctrine exists to prevent it.

But wait, there’s more.  Whether the ultimate issue is the statutory definition of “ATDS,” or if a specific fax is an “advertisement” under the TCPA, it is important to note that the primary jurisdiction doctrine is not just applicable to statutory interpretation.  The primary jurisdiction doctrine “is designed to coordinate administrative and judicial decision-making 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.”  Fromer Chiropractic, supra, 2018 U.S. Dist. LEXIS 150072 at *16, internal citation omitted.

In Fromer Chiropractic, the court granted in part the defendants’ motion to dismiss the complaint.  The part granted was as to the defendants’ request in the alternative for the case to be stayed pending the FCC’s resolution of a petition pending before it.  That petition, submitted by the defendants to the FCC, sought an expedited ruling on whether or not the allegedly-improper fax at issue was actually an advertisement.   2018 U.S. Dist. LEXIS 150072 at *16.  As we know, with certain exceptions, an unsolicited fax must advertise “the commercial availability or quality of any property, goods, or services” to be actionable.  47 U.S.C. § 227(a)(5); 47 U.S.C. §227(b)(1)(C).  The fax at issue, however, offered medical providers, such as the plaintiff, free access to the defendant’s electronic record retrieval system.  Fromer Chiropractic, supra, 2018 U.S. Dist. LEXIS 150072 at *4.

The FCC’s 2006 Rules and Regulations implementing the TCPA (“2006 Rule”) specifically indicate that fax communications that contain only information are not prohibited by the TCPA.  Id., at *18.  In this case then, because it was not patently obvious whether, under existing FCC and Fourth Circuit precedent, the fax at issue was a permissible information-only transmission rather than an unsolicited advertisement, there was a danger of running afoul of the 2006 Rule (as well as the FCC’s anticipated resolution of similar issues relating to a case venued in the Southern District of Florida).

Accordingly, rather than run the risk that its interpretation could be inconsistent with either the agency’s forthcoming determination relating to this case, or the one in South Florida, the court rightfully stayed the action pending the FCC’s resolution of the defendants’ petition.

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