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Samson v. United healthcare Services Inc.

United States District Court, W.D. Washington, Seattle

May 20, 2019



          The Honorable James L. Robart, U.S. District Court Judge.


         Before the court is Defendant United Healthcare Services, Inc.'s (“United”) motion to stay. (Mot. (Dkt. # 35).) Plaintiff Frantz Samson opposes United's motion. (Resp. (Dkt. # 37).) The court has considered the motion, the parties' submissions concerning the motion, the relevant portions of the record, and the applicable law. Being fully advised, [1] the court DENIES United's motion to stay.


         This case arises under the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (“the TCPA” or “the Act”). (Compl. (Dkt. # 1-2) ¶¶ 10.1-11.4.) Mr. Samson alleges that United violated the TCPA when it called him from an “automatic telephone dialing system” (“ATDS”) without his prior express consent. (Id. ¶¶ 1.2, 6.8, 6.16-6.18.) On May 14, 2018, the Federal Communications Commission (“FCC”) sought public comment on the meaning of the terms “ATDS” and “called party” under the TCPA. (Armstrong Decl. (Dkt. # 36) ¶ 2, Ex. 4 (“5/14/18 Notice”) at 1.) United argues that the FCC's interpretation of these terms is “potentially outcome-determinative” of Mr. Samson's claims and moves to stay these proceedings pending the FCC's determination. (Mot. at 1-2.)

         A. Statutory and Regulatory Background

         The TCPA prohibits making any call “using any automatic telephone dialing system [ATDS] or an artificial or prerecorded voice” to a telephone number assigned to a cellular service. 47 U.S.C. § 227(b)(1)(A). It defines ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. Id. The TCPA does not // impose liability where the “called party” provides “prior express consent.” Id. § 227(b)(1)(a).

         Since the TCPA's enactment, the FCC has issued a series of rulings addressing the Act's reach. In a 2015 Declaratory Ruling and Order (“2015 Order”), the FCC addressed the meaning of both “ATDS” and “called party” under the TCPA. (Armstrong Decl. ¶ 2, Ex. 3 (“2015 Order”).) The FCC defined ATDS as a device with the capacity to dial random or sequential numbers, even if it lacks the “‘present ability' to do so.” (Id. ¶ 15.) The FCC also clarified the meaning of “called party” in the context of reassigned numbers. (See Id. ¶¶ 71, 74.) The 2015 Order defined “called party” in this context as the post-reassignment “subscriber” or “customary user, ” rather than the intended recipient of the call. (Id. ¶¶ 73-74.) The FCC recognized that, under this definition, a caller might be liable to the new subscriber although the caller reasonably did not know that the number had been reassigned. (See Id. ¶¶ 87-88.) Thus, the FCC designated a one-call safe harbor whereby a caller would not be liable for the caller's first call to a reassigned number. (See Id. ¶ 90.)

         In ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the D.C. Circuit set aside the FCC's definition of ATDS and treatment of reassigned numbers. Id. at 700, 708. The court concluded that the FCC's definition of ATDS was “unreasonably and impermissibly expansive, ” id. at 700, because “it would appear to subject ordinary calls from any conventional smartphone to the Act's coverage, ” id. at 692. Furthermore, the court concluded that the FCC's one-call safe harbor was arbitrary and capricious. Id. The court set aside the FCC's treatment of reassigned numbers generally because it could not determine with substantial certainty that the FCC would have adopted that definition without the one-call safe harbor. Id. at 708-09. Nonetheless, the court emphasized that the FCC could permissibly interpret “called party” to refer to the “current subscriber” in the reassigned number context. Id. at 706. Shortly thereafter, the FCC sought public comment on the meaning of the terms “ATDS” and “called party” in light of the D.C. Circuit's ruling in ACA International. (5/14/18 Notice at 1, 3.)

         In the meantime, the Ninth Circuit addressed the meaning of ATDS in Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1049 (9th Cir. 2018), cert. dismissed, 139 S.Ct. 1289 (2019). The Ninth Circuit concluded that, after ACA International, “only the statutory definition of ATDS as set forth by Congress in 1991 remains.” Id. Interpreting the statute “anew, ” the Ninth Circuit held that the statutory text is ambiguous on its face. Id. at 1050-51. After examining the context and structure of the statutory scheme, the Court concluded “that the statutory definition of ATDS is not limited to devices with the capacity to call numbers produced by a ‘random or sequential number generator,' but also includes devices with the capacity to store numbers and to dial stored numbers automatically.” Id. at 1052. The FCC subsequently issued a call for public comment on the Ninth Circuit's interpretation of ATDS, “as well as how that decision might bear on the analysis set forth in ACA International.” (Armstrong Decl. ¶ 2, Ex. 5 (“10/3/18 Notice”) at 1-2.)

         B. Factual and Procedural Background

         Mr. Samson acquired a new cell phone number in March 2018, at which point he received his first call from United. (Compl. ¶¶ 6.1, 6.3.) United argues that it likely received prior express consent to call that number before it was reassigned to Mr. Samson. (Mot. at 2 (citing Answer (Dkt. # 34) ¶ 26).) During the following months, Mr. Samson allegedly received “numerous automated calls” from United, even after he informed a United agent that he was not the person United intended to call. (Id. ¶¶ 6.3-6.6.) Mr. Samson alleges that United used both an artificial or prerecorded voice and an ATDS. (Id. ¶ 6.16-6.17.) He further alleges that he did not consent to receiving United's calls. (Id. ¶ 1.2.)

         Mr. Samson brought this lawsuit against United in King County Superior Court under the Washington Automatic Dialing and Announcing Device Statute, RCW 80.36.400, and the TCPA. (Compl. ¶¶ 8.1-11.4.) He seeks to represent a class of others similarly situated. (Id. ¶ 1.3.) United removed the matter to federal court. (See Not. of Rem. (Dkt. # 1) at 1.) United now moves under the primary jurisdiction doctrine to stay these proceedings until the FCC defines the terms “called party” and “ATDS.” (See generally Mot.)

         III. ...

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