Eric Troutman, a partner at the law firm of Womble Bond Dickinson, and a noted expert on the Telephone Consumer Protection Act, has published an interesting piece where he predicts an “avalanche” of stay orders in pending TCPA cases in the coming months, now that the Federal Communications Commission has restarted the process of trying to define what constitutes an automated telephone dialing system and who a “called party” is.
In his post, Troutman says that the “primary jurisdiction doctrine” is now the TCPA defendant’s “best friend.”
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.
As Troutman says, courts do not make laws, they enforce them. Congress, and to a lesser extent, the federal agencies tasked with enforcing the laws enacted by Congress, have the power to make law. The recent Appeals Court decision in ACA International v. FCC, which overturned much of a 2015 Declaratory Ruling from the FCC, especially the FCC’s definitions of ATDS and called party, have created a situation where the FCC must now go back and try again.
Asking a Court to rule on the definition of “ATDS” or “called party” while the FCC is already hard at work seeking clarity on both points, therefore, might be viewed as overly-exuberant, or even foolhardy.
