Trial Courts Not Waiting For D.C. Circuit’s Ruling on Appeal of the FCC’s July 2015 TCPA Omnibus Order

In the past week, two federal trial courts have rejected requests made by defendants in Telephone Consumer Protection Act cases to put those cases on hold while the D.C. Circuit resolves the appellate attacks on the FCC’s sweeping July 2015 omnibus Order.  

Photo by Niyazz/iStock / Getty Images

On April 26, the federal district court in New Jersey denied Comcast’s request to stay the case brought against it by Jan Konopca, who alleges that he never had a business relationship with Comcast, never gave Comcast his mobile number, but Comcast nevertheless called his cell phone using an automatic telephone dialing system without his prior express consent.  The TCPA-related implications of that issue – when a caller receives consent to call a given number, but that number is later re-assigned to a third party who had no prior relationship with the caller – are squarely before the D.C. Circuit in the ACA International v. FCC appeal.  The appellants have challenged the FCC’s conclusion that the “TCPA requires the consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of the phone).”  The court in Konopca v. Comcast found that waiting for the D.C. Circuit’s ruling would unduly prejudice the plaintiff, and that the countervailing hardship to Comcast of engaging in some potentially unnecessary discovery did not outweigh the harm to the plaintiff.  

And on April 22, a federal trial court in Alabama also denied AmSher Collection Service’s similar motion to stay its TCPA putative class action case pending the D.C. Circuit’s ruling in ACA International.  Like the Comcast case, AmSher claims that it called the plaintiff’s telephone number because that is the number it was given the consent to call by a prior subscriber of that telephone number, and it had no notice or knowledge of the fact that the number had since been reassigned to the plaintiff.  In rejecting AmSher’s motion for a stay of that case, the trial court noted that the Eleventh Circuit Court of Appeals had already issued a ruling, like the FCC’s, that rejected the interpretation of the TCPA’s “called party” language to be synonymous with “intended recipient,” which would excuse defendants from TCPA liability when they had in fact been given consent to call that phone number, albeit by a prior subscriber of that number.  The court also cited the fact that the D.C. Circuit’s decision is not expected in the near future, such that any delay would be significant, and thus unjustified.  

The Plaintiffs’ bar thus continues its steady, rising march of TCPA litigation, notwithstanding the significant challenges that have been asserted against the FCC’s most recent expansion of Congress’s 1991 law.