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Hofer v. Synchrony Bank

United States District Court, E.D. Missouri, Eastern Division

May 18, 2015

JOSEPH A. HOFER, individually and on behalf of others similarly situated Plaintiff,


CATHERINE D. PERRY, District Judge.

Plaintiff Joseph A. Hofer filed this putative class action complaint against defendant Synchrony Bank under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. ยง 227 et seq. Synchrony has filed a motion to stay the proceedings in this case based on the primary jurisdiction doctrine and on this court's inherent authority to manage its docket. The Federal Communications Commission twice has ruled that a predictive telephonic dialing system that operates from a list of numbers qualifies as an "automatic telephone dialing system" under the TCPA. There is no need, then, to stay this case pending resolution of that question by the FCC. The second issue - whether a call made to the "wrong party" can qualify for the "called party" consent exception - does not require a stay pending adjudication by the FCC, because other courts have construed the statute at issue to answer the question and because no ruling by the FCC is imminent. Finally, this court declines to invoke its inherent authority to stay the case. The motion will be denied.


Joseph Hofer alleges that Synchrony Bank called his cellular telephone in an attempt to collect on credit card debt purportedly owed by his deceased father. Hofer informed Synchrony that the phone number was not his father's and that he had nothing to do with the debt. Hofer also requested that the calls cease; however, he continued receiving calls from Synchrony. Hofer asserts that the calls were made using equipment with the present capacity to dial telephone numbers without human intervention; the technology also has the capacity to store or produce numbers to be called using a random or sequential number generator or a list of numbers.

Hofer alleges it was Synchrony's practice to obtain telephone numbers from credit reports and other sources independent from the persons being called. Synchrony would then compile lists of these telephone numbers, which would be loaded into an autodialer or predictive dialer. Synchrony would then call the numbers without first obtaining consent from the called party. Synchrony contends that the autodialer does not have the present capability of generating sequential or random numbers.

Hofer brings this TCPA claim[1] on behalf of a class whose cellular telephone number was called using a predictive dialer and whose telephone number was obtained from a source other than the called party. He alleges a subclass of persons, to which he belongs, consisting of those persons who were called after requesting that the calls cease.

Synchrony has filed a motion to stay this matter pending decisions by the Federal Communications Commission on two issues in several petitions that it claims are both before the FCC and dispositive of the issues now before this court. Synchrony relies on the doctrine of primary jurisdiction in support of its motion. Synchrony also argues in the alternative that this court should exercise its inherent authority to stay this case in order to avoid burdening its own docket and to ensure fairness to the parties.

The issues that Synchrony states are before the FCC are:

(1) whether the use of the term "capacity" within the definition of "Automatic telephone dialing system"[2] requires the current capacity to store or produce randomly or sequentially generated numbers; and
(2) whether the defense of "prior express consent" of a "called party" under the TCPA attaches to the intended recipient or to the actual recipient of the complained-of telephone call.


Synchrony invokes the primary jurisdiction doctrine in support of its motion to stay. "Primary jurisdiction is a common-law doctrine that is utilized to coordinate judicial and administrative decision making." Access Telecomms. v. Sw. Bell Tel. Co., 137 F.3d 605, 608 (8th Cir. 1998). The doctrine "applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body." Alpharma, Inc. v. Pennfield Oil Co., 411 F.3d 934, 938 (8th Cir. 2005) (internal quotation marks and citation omitted).

There is no fixed formula to determine the applicability of the doctrine, but rather it depends on "whether the reasons for the doctrine are present and whether applying the doctrine will aid the purposes for which the doctrine was created." Access Telecomms., 137 F.3d at 608. Deferral to an agency determination is appropriate for (1) "the promotion of consistency and uniformity within the areas of regulation, and (2) "the use of agency expertise in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion." Alpharma, 411 F.3d at 938 (internal ...

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