Antitrust Law Daily Wrap Up, PRIVACY—N.D. Ala.: Wells Fargo unable to place TCPA claims on hold for FCC clarification, (Nov 5, 2014)

By Greg Hammond, J.D.

Wells Fargo Bank, N.A. could not persuade the federal district court in Birmingham, Alabama to stay a consumer’s class Telephone Consumer Protection Act (TCPA) claims, pending the resolution of two petitions recently submitted to the Federal Communications Commission (FCC). In denying the bank’s motion to stay, the court determined that Wells Fargo failed to demonstrate the applicability of the primary jurisdiction doctrine in this case (Shehan v. Wells Fargo Bank N.A., November 3, 2014, England, J.).

Consumer James Shehan filed suit against Wells Fargo, alleging the bank violated the TCPA by autodialing his cellular telephone number without his consent. Wells Fargo argues that the telephone calls were “not intentionally directed at Shehan,” but were directed at the previous holder of Shehan’s cellular telephone number, who gave express consent.

Wells Fargo moved to stay the action based on the doctrine of primary jurisdiction, pending the resolution of two petitions submitted to the FCC, including: (1) a petition asking the FCC to clarify the applicability of the TCPA as to calls to wireless numbers for which valid prior express consent has been obtained but which, unbeknownst to the calling party, have subsequently been reassigned from one wireless subscriber to another, and (2) a petition requesting that the FCC establish a safe harbor for non-telemarketing calls when the debt collector had previously obtained appropriate consent and had no intent to call any person other than the person who had previously provided consent to be called.

The two primary factors a court considers when deciding whether to stay an action based on primary jurisdiction grounds are: (1) whether the specialized knowledge of the FCC is needed to answer the questions before the court, and (2) whether referral is necessary for a uniform interpretation of the statute at issue.

The court first determined that the specialized knowledge of the FCC is not needed in this case, because the term “called party” is a matter of statutory construction that courts are well-equipped to undertake, and it does not involve a technical question or factual inquiry uniquely within the FCC’s expertise. In addition, the court concluded that no circuit court has interpreted “called party” differently or created an exception to the rule, demonstrating a uniform interpretation of the statute.

The case number is 1:14-cv-00900-JHE.

Attorneys: Gina DeRosier Greenwald (Greenwald Davidson PLLC) for James Shehan. Divya S. Gupta (Severson & Werson) and R. Frank Springfield (Burr & Forman LLP) for Wells Fargo Bank N.A.

Companies: Wells Fargo Bank N.A.

Cases: Privacy AlabamaNews