Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—S.D. Ohio: Telemarketing case referred to FCC for issue of first impression, (Aug 7, 2014)

By Greg Hammond, J.D.

A consumer has successfully evaded a magistrate judge’s recommendation that his Telephone Consumer Protection Act (TCPA) case be dismissed. In granting his motion to stay and referring the case to the Federal Communications Commission under the primary jurisdiction doctrine, the federal district court in Cincinnati determined that the case presented a question of first impression that had wide-reaching consequences, and that the FCC is in the best position to opine first on the topic (Lucas v. Telemarketer Calling From (407) 476-5680, August 5, 2014, Spiegel, S.).

Background. Vincent Lucas filed suit against three corporate entities and three individuals, alleging violations of the TCPA. Specifically, he alleges that the corporate entities—including Pacific Telecom Communications Group, Telephone Management Corp., and International Telephone Corp.—are “vicariously and/or contributorily” liable for assisting and facilitating third-party telemarketers who initiated improper calls to his land line. In addition, Lucas has petitioned the FCC for expedited declaratory ruling, asking it to hold that “a person is vicariously or contributorily liable if that person provides substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that violates 47 U.S.C. sec. 227(b) or (c).” The defendants moved to dismiss the complaint, and Lucas moved to stay the defendants’ motion.

Primary jurisdiction. Referral of an issue to an agency is proper, under the primary jurisdiction doctrine, when “a ruling by the agency will advance regulatory uniformity, or when the issue either falls within the agency’s discretion or would benefit from technical or policy considerations within the agency’s expertise.” The court concluded that this case meets all three factors. Specifically, it noted that: (1) the FCC is the principal agency dedicated to policing the telecommunications industry and (2) although the issue does not require the FCC’s technical expertise, it does present a policy consideration of major proportion. Consequently, Lucas’ motion to stay the defendant’s motion to dismiss was granted.

The case number is 1:12-cv-00630.

Attorneys: Vincent Lucas, pro se. Allison Leigh Harrison (Mac Murray, Petersen and Shuster, LLP) for Pacific Telecom Communications Group, Telephone Management Corp., and Int’l Telephone Corp.

Companies: Pacific Telecom Communications Group; Telephone Management Corp.; Int’l Telephone Corp.

Cases: ConsumerProtection Privacy OhioNews