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A Bridge to Somewhere: Primary Jurisdiction Doctrine Applicable in TCPA Fax Cases and ATDS Suits Alike

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The primary jurisdiction doctrine Eric wrote about a mere few weeks ago was on full display in a recent ruling granting a motion to stay in a junk-fax TCPA class action.

In Scoma Chiropractic, P.A., et al v. Dental Equities, LLC, et al., 2018 U.S. Dist. LEXIS 92736, the District Court for the Middle District of Florida granted a motion to stay brought by one of the defendants, pending a ruling by the FCC on the Petition for Expedited Declaratory Ruling of AmeriFactors Financial Group, LLC, CG Docket Nos. 02-278, 05-338, filed July 13, 2017.  That petition seeks a ruling that e-faxes and other faxes not sent or received with an actual fax machine are not within the definition of a “telephone facsimile machine” under the TCPA.

The defendant in Scoma had moved for a stay on the basis that a ruling on the AmeriFactors petition would address one of the key issues in the case: whether the online fax services used to send some of the faxes at issue was a “telephone facsimile machine” (TFM) under the TCPA, and that a stay was therefore warranted under the primary jurisdiction doctrine.  The court agreed, holding that a stay was warranted because deferring to the FCC would “advance the basic purpose of the [primary jurisdiction] doctrine because the specialized knowledge of the FCC is needed to answer the questions before the Court[.]”  2018 U.S. Dist. LEXIS 92736 at *8.  Whether “TFMs encompass online fax services is a matter of defining a technical term and Congress has explicitly tasked the FCC with prescribing regulations to implement the requirements of the TCPA, including the subsection prohibiting unsolicited facsimile advertisements.”  Id. at *9.

The Court noted that although there had been prior occasions when the FCC addressed whether certain computerized faxing technology falls within the TCPA’s prohibitions, “the last occasion was in 2015, and none appear to be directly applicable to the issues raised here with regard to sending and receiving faxes using cloud-based servers, raising a potential first-impression interpretation for the FCC.”  2018 U.S. Dist. LEXIS 92736 at *9.

Quite simply, deferring to the FCC was “necessary for a uniform interpretation of the statutory questions at issue.”  2018 U.S. Dist. LEXIS 92736 at *8-9.  The Court emphasized the fact that if the case proceeds, “there is a risk that the Court could reach a determination that is inconsistent with the FCC’s ultimate decisions on the AmeriFactors Petition, and this Court is ultimately bound to adhere to the FCC’s interpretation of the TCPA.”  2018 U.S. Dist. LEXIS 92736 at *9, internal citation omitted.

That sentiment of uniformity in the law, detailed here earlier by Eric, assures that the FCC’s policy choices are deferred to by courts and is crucial in the administration of the TCPA given the vagueness of many of its provisions.  Although the issues here involve a different petition, they have strong parallels to the FCC petition relation to ACA issues.  At their heart, both petitions are about whether a piece of technology falls within one of the definitions set forth in the TCPA.  The reasoning as to applying the primary jurisdiction doctrine is equally as applicable, and illustrates the importance of these stays.

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