A federal judge in Arizona has denied a request from a defendant to stay a class-action lawsuit accusing it of violating the Telephone Consumer Protection Act until the Federal Communications Commission issues a new rule following the outcome of ACA International v. FCC.
A copy of the ruling in Knapper v. Cox Communications Inc. can be accessed by clicking here.
The defendant was accused of violating the TCPA by using an automatic telephone dialing system to contact the plaintiff on her cell phone without her prior consent. The defendant was also accused of placing calls to wrong numbers or phone numbers that had been reassigned using an autodialer.
In arguing for a stay in the proceedings, the defendant noted that the FCC has announced it will soon issue a new rule that will seek to clarify a number of issues relative to the TCPA, including the definition of a “called party.” The defense is arguing that it did not use an ATDS — as defined by the FCC — when making the calls, the plaintiff is not a “called party,” and that it should be exempt from liability because of good faith calls made to reassigned numbers.
But the judge ruled against a stay, deciding that there is no issue that is in need of resolution should it decide to wait for a new rule from the FCC. In looking at rulings from the appellate level in the court’s region — the Ninth Circuit Court of Appeals has already ruled on the definition of an ATDS in a little case known as Marks v. Crunch San Diego. The judge denied the defense’s argument that the ruling in Marks is an “outlier,” and inconsistent with the ruling in ACA v. FCC.
The judge also denied a good faith defense argument from the defendant because that would only apply if the proposed reassigned number database being worked on by the FCC were already in existence, and will likely not be applied retroactively — to cover situations like this one — once it is up and running.
Finally, because there is no timeline as to when the FCC will issue its proposed rule, waiting would not be prudent, the judge ruled.
“In sum, there is simply no telling if and when the FCC might rule on this issue and if that ruling would be appealed,” wrote Judge Steven Logan in his ruling. “While a short stay in this case would likely cause little prejudice to [the] plaintiff, as the Court has noted, there is little indication that this stay would be short. There is no guarantee that any FCC action is on the horizon or would ultimately simplify ‘issues, proof, and questions of law in this case.’ “
