It is hard to believe, but this coming Thursday will mark the one-year anniversary of the oral argument in the big ACA, Int’l appeal of the FCC’s Omnibus Telephone Consumer Protection Act (“TCPA”) ruling.
For the uninitiated, the ACA, Int’l appeal is set to determine the scope and application of the TCPA in a ruling that may also have far-reaching legal effects on First Amendment issues, agency deference principles, and the limits (or lack thereof) on Congressionally-delegated rulemaking authority under the Telecommunications Act. It will be a grab bag of delights for all. I sincerely cannot wait.
Speaking of waiting, district courts handling TCPA cases under the shadow of the ACA, Int’l appeal appear to have run out of patience with the D.C. Circuit Court of Appeals, or at least to have lost faith that the ruling will be made swiftly. As the appeal is likely to determine the legality of an FCC-concocted expansion of the TCPA, many defendants have requested that courts stay TCPA cases pending the outcome of the appeal. The logic behind the stay requests is simple—why force the parties to move forward with a case when the legal ground beneath the parties’ feet may shift at any moment? Plaintiffs generally oppose these stay requests, however, calculating that the law is as favorable to their side as it will ever be and thus the sooner the case proceeds the better.
Courts were originally sympathetic to the defense position. In the three months following the oral argument in ACA, Int’l (Oct. 19, 2016) courts were commonly willing to grant stay motions. Based on my research, at least eight district courts stayed individual TCPA cases between October 19, 2016 and late January 2017. Conversely, only two stay motions were denied during that timeframe.
As the months have dragged on, however, the tide has changed. Over the last three months, courts have denied stay motions twelve times and granted them only five times. And over the last two months, matters are even starker—only one stay motion has been granted in a TCPA case since mid-August. See Mizell v. Conn Appliances, Inc., Case No. 4:15-CV-550, 2017 U.S. Dist. LEXIS 161118 (E.D. Tex. Sept. 28, 2017) (motion to stay pending ACA Int’l appeal granted). During that same eight-week timeframe, however, nine stay requests have been denied—that’s more than one per week.
While it is counter-intuitive that district courts should now be less apt to stay cases with the big ruling closer than ever, it is clear that such a shift has occurred. As such, TCPA defendants should no longer expect a sympathetic ear when requesting an ACA, Int’l appeal stay, although the rationale supporting such stays remains as compelling as ever.
