United States District Court, W.D. Oklahoma
ROBERT H. BRAVER, for himself and all individuals similarly situated, Plaintiff,
NORTHSTAR ALARM SERVICES, LLC, a Utah Limited Liability Company, et al., Defendants.
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
Yodel Technologies, LLC moves to stay this action. Doc. no.
175. Plaintiff Robert H. Braver responded for himself and the
class, objecting to the stay. Doc. no. 185. Yodel filed a
reply brief. Doc. no. 188. For the reasons stated in this
order, the motion for a stay will be denied.
the second time Yodel has asked this court to stay this
action pending action by the Federal Communications
Commission. In Yodel's first motion to stay, it joined a
motion filed by NorthStar Alarm Services, LLC, in which
NorthStar (and Yodel, by joining) argued that this action
should be stayed while the FCC considered NorthStar's
petition for a declaratory ruling pending before that agency.
Following briefing, this court held a hearing on
defendants' motion to stay on March 6, 2019. Doc. no. 108
(Tr. of March 6, 2019 hearing). At the hearing, the court
considered the doctrine of primary jurisdiction under the
analytical framework approved by the court of
appeals and it also considered the district
court's inherent power to control its own docket.
Applying those doctrines, the court denied the motion,
stating it reasons in detail. Tr., pp. 48-57; doc. no. 105
(minute order). Those reasons are summarized below because
they remain pertinent as reasons which support denial of the
respect to the doctrine of primary jurisdiction, the court,
at the hearing in March, first considered whether the issue
presented is one as to which the court should defer to the
FCC because the issue is not within the conventional
experience of judges. The court observed that there was no
dispute in this action over how soundboard technology works
or over other technical issues. The court also observed that
NorthStar's petition filed with the FCC asks the FCC to
do something which both regulatory agencies and courts do
regularly, namely, it asks the FCC to look at statutory
language and decide what that language means. Given the
relative simplicity of the statutory language at issue in
this action, the court believed then, and it continues to
believe now, that the issue is within the conventional
experience of judges.
with respect to the primary jurisdiction doctrine, the
undersigned considered whether the issue presented is one
which requires uniformity and consistency in the regulation
of a business entrusted to the FCC. The undersigned stated
that this part of the analysis “gives me pause, ”
but that it was going “to be a while before we get
anything that is definitive in any national sense” from
either the Tenth Circuit or the D.C. Circuit. Tr., p. 53. The
court indicated its view that no matter which forum first
addresses the issue presented in this action, there is no
glaring discrepancy or difference between the uniformity and
consistency available to the parties while this issue makes
its way through these forums and their respective courts of
with respect to the primary jurisdiction doctrine, the court,
at the March hearing, considered whether the issue presented
requires the exercise of administrative discretion. The court
found this question “a bit hollow” because the
statutory interpretation required by this action is not the
type of issue that suggests that discretionary leeway is
appropriate. Tr., p. 54.
addition to the court's conclusion that it should not
stay this action under the primary jurisdiction doctrine, the
court also found, in March, that a stay should be denied
based on its inherent authority to control its own docket.
The court noted that it is required to take into account Rule
1 of the Federal Rules of Civil Procedure. The court
declined “to hitch [its] docket to the FCC's docket
for what is very clearly an undetermined length of
time.” Tr., p. 56.
of these reasons, defendants' first motion for a stay was
denied. The main difference this time around is that Yodel
has now filed its own petition with the FCC. Yodel's
petition seeks a declaratory ruling regarding the application
of 47 U.S.C. § 227(b)(1)(B), the portion of the TCPA
which is in question in this action. Alternatively,
Yodel's petition asks the FCC for a retroactive waiver of
liability prior to May 12, 2017 (a type of relief not
included in NorthStar's petition filed with the FCC).
See, doc. no. 175-1 (Yodel's FCC petition).
Based on the pendency of Yodel's FCC petition, Yodel
makes two new arguments for a stay, addressed below.
states that “Given the prospect of the FCC proceeding
to alter the liability determination in this case, Yodel
therefore files this motion asking this Court to stay this
case in deference to the FCC….” Doc. no. 175, p.
4. The referenced “prospect” is Yodel's hope
that its FCC petition may result in (to quote the petition)
an “expedited retroactive waiver of liability from the
Commission for [Yodel's] use of soundboard technology
prior to May 12, 2017.” Doc. no. 175-1, p. 3 of 14. Such
a waiver, if granted by the FCC, would include the calls in
question in this action. Braver urges the court to reject this
argument for a stay, contending that the FCC does not have
the authority to provide the waiver Yodel seeks because any
such waiver would constitute a waiver of statutory liability
rather than a waiver of an FCC rule. Braver cites authorities
such as Physicians Healthsource, Inc. v. Stryker Sales
Corp., 65 F.Supp.3d 482, 498 (W.D. Mich. 2014)
(“the FCC cannot use an administrative waiver to
eliminate statutory liability in a private cause of action;
at most, the FCC can choose not to exercise its own
enforcement power”); and Nat'l Ass'n of
Broadcasters v. FCC, 569 F.3d 416, 426 (D.C. Cir. 2009)
(FCC has authority under 47 C.F.R. § 1.3 “to waive
requirements not mandated by
statute….”). Yodel replies to Braver's argument,
contending the FCC may grant waivers of its own rules even if
the waiver involves statutory interpretation and even if the
waiver may affect statutory liability. Yodel cites Simon
v. Healthways, Inc., 2015 WL 10015953 (C.D. Calif. Dec.
17, 2015), which upheld the FCC's ability to grant a
retroactive waiver in the circumstances of that
not necessary to here resolve the parties' dispute over
the FCC's authority (or lack of it) to grant Yodel a
retroactive waiver of liability. It is not necessary to
decide that issue because, no matter how that issue might be
decided, this court would deny a stay at this juncture.
Furthermore, given the parties' dispute over the scope of
the FCC's authority, it is likely that the waiver issue
(like other, broader issues Yodel and NorthStar have raised
with the FCC) may not be determined with any nationwide
certainty until the FCC has issued its ruling and any appeals
of that ruling, and of this court's ruling, have run
their course. For that reason and others, the court remains
unwilling to tie its docket to matters pending before the
FCC. The primary jurisdiction doctrine, as well as the
court's inherent authority to control its own docket,
support the court's decision to deny the stay at this
juncture, just as those doctrines supported the court's
decision to deny a stay in March.
other new argument for a stay is its position that it filed
the current motion to ensure that its rights are preserved
while the FCC considers its petition. Yodel argues that in
Wakefield v. ViSalus, Inc., 2019 WL 3945243 (D. Or.
August 21, 2019), the court ruled that a TCPA-defendant had
not preserved its defenses despite an FCC ruling in the
defendant's favor, where the defendant had not previously
moved for a stay or raised certain defenses before the
district court. The court rejects this argument for a stay;
concerns about preserving defenses may be a basis for moving
to stay, but they are not a basis for granting a stay.
addition to the two new arguments for a stay rejected above,
Yodel makes a few additional arguments which were not
addressed in March. Yodel argues that the court should
exercise its inherent authority to stay this action: because
Yodel has a reasonable likelihood of a successful resolution
of its pending FCC petition; because Yodel will be
irreparably harmed absent a stay because proceeding to
judgment might put it out of business before the FCC has an
opportunity to rule; because plaintiffs will not be unduly
prejudiced by waiting until the FCC issues its ruling; and
because a stay would promote the public interests of judicial
economy and administrative uniformity. Doc. no. 175, p. 10.
The court rejects these arguments for the reasons stated
belief that it has a reasonable likelihood of success before
the FCC is not persuasive. This court rejected Yodel's
interpretation of the TCPA in the order on summary judgment.
And even if the FCC rules in Yodel's favor on that issue,
the FCC's order is virtually certain to be the subject of
an appeal which will take time to resolve. As previously
stated, the court declines to stay this action pending a
future ruling by the FCC and associated appeals. Nor do
Yodel's concerns about irreparable injury and prejudice
merit a stay. These concerns relate to Yodel's ability to
continue in business and are currently before the court in a
separate motion by which Yodel seeks a reduction of damages.
These concerns are best addressed in that context and are not
grounds to stay this action. The public's interest in
obtaining uniform rulings also does not merit a stay. It is
unlikely that any nationwide certainty will be available on
the question of §227(b)(1)(B)'s applicability to
soundboard calls for quite some time. This is so with or
without a stay.
summary, the court has considered Yodel's new arguments,
as well as arguments Yodel made at an earlier stage which
have now been re-stated and reconsidered. For the reasons
stated in this order and in the ...