Antitrust Law Daily Wrap Up, PRIVACY—M.D. Pa.: Motion to stay proceedings in TCPA action against debt collection agency denied, (Jun 6, 2014)

By Linda O’Brien, J.D., LL.M.

In an action by a consumer against a debt collection agency for violations of the Telephone Consumer Protection Act by allegedly placing telephone calls to her cellular phone using an automated message or automatic telephone dialing system, the federal district court in Scranton, Pennsylvania has denied the collection agency’s motion to stay the proceedings (Fenescey v. Diversified Consultants, Inc., June 4, 2014, Conaboy, R.).

Consumer Elizabeth Fenescey filed suit against Diversified Consultants, a collection agency, alleging that the company placed telephone calls to her cellular phone using an automated or prerecorded message and that Diversified used an automatic telephone dialing system (ATDS) to call her cellular phone, in violation of the Telephone Consumer Protection Act (TCPA). Fenescey also alleged that Diversified violated the Fair Debt Collection Practices Act by causing her cellular phone to ring repeatedly with the intent to annoy, abuse, or harass her. Diversified moved to stay the proceedings because relevant provisions of the TCPA were pending before the Federal Communications Commission (FCC).

The court found that no stay of the proceedings was warranted on the basis of the FCC’s consideration of the issue on whether the TCPA applied to debt collection. Under the doctrine of primary jurisdiction, a court will allow a regulatory agency the initial opportunity to decide an issue in a case in which the court and the agency have concurrent jurisdiction. The court noted that the question of whether the TCPA applied to telemarketers and not debt collectors was resolved in Gager v. Dell Financial Services, LLC, 727 F.3d 265 (2013). Given the clarity of the precedential opinion, there was no need for the court to further evaluate the doctrine of primary jurisdiction on the issue of whether the TCPA applied to debt collection calls made to cellular phones. The plaintiff alleged that debt collection calls were made to her cellular phone, therefore, no stay of the proceedings was warranted, the court determined.

Moreover, there was no basis to stay the action on the issue of whether Diversified’s dialing equipment was considered an ATDS. Fenescey argued that the calls were made using an artificial or prerecorded message and such calls were regulated by the TCPA even if they were not made using an ATDS. The court noted that, because Diversified’s argument was based on a potential determination by the FCC that the TCPA did not apply to debt collection calls and the issue was decided in the Gager case, there was no basis to stay the action, the court concluded.

The case is No. 3:14-CV-347.

Attorneys: Brett M. Freeman (Sabatini Law Firm LLC) for Elizabeth Fenescey. Ronald M. Metcho, II (Marshall Dennehey Warner Coleman & Goggin) for Diversified Consultants, Inc.

Companies: Diversified Consultants, Inc.

Cases: Privacy PennsylvaniaNews