Dorsey’s TCPA Team Earns First-of-Its-Kind Order Staying Individual TCPA Case Pending D.C. Circuit’s Ruling on Consolidated Appeal of the FCC’s 2015 Omnibus Order

Dorsey & Whitney LLP

On June 14, 2016, Dorsey’s Telephone Consumer Protection Act (“TCPA”) litigation team secured a stay in an individual TCPA case in the Northern District of Georgia pending the D.C. Circuit’s decision in ACA Int’l, et al. v. Fed. Commc’n Comm’n, No. 15-1211 (D.C. Cir. July 13, 2015).  This is the first stay in that district based upon the D.C. Circuit’s review of the FCC’s July 10, 2015 TCPA Omnibus Declaratory Ruling and Order.  Indeed, this is only the third such stay issued anywhere in the nation that was granted solely upon those grounds.

The order, issued by Judge Charles A. Pannell, Jr., arises out of claims brought under the TCPA, 47 U.S.C. 227 et seq., wherein the plaintiff alleges text messages were sent to his cell phone without his prior express consent.  In granting the stay, Judge Pannell recognized that among the issues to be considered in ACA Int’l is “whether the FCC’s treatment of the term ‘capacity’ in defining [Automatic Telephone Dialing System (ATDS)] is ‘arbitrary, capricious, [or] an abuse of discretion,’ and thus results in an approach that does not comport with the caller’s constitutional rights of due process and freedom of speech, and that disregards the applicable statute.”  Further, Judge Pannell reasoned that the question of whether an ATDS was used to send text messages to the plaintiff, as alleged, is “a threshold issue for liability under the TCPA and for the scope of discovery.”  Judge Pannell entered the stay accordingly.

The victory is all the more remarkable given that the Chief Judge of the Northern District of Georgia—Judge Thrash—entered an order denying such a stay sought by another bank (not represented by Dorsey’s TCPA team) in a nearly identical case just last week.

The Court’s order staying Rose v. Wells Fargo Advisors, LLC, No. 1:16-CV-562-CAP (N.D. Ga. June 14, 2016), can be found by clicking here.

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