Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nicholson v. REI Energy LLC

United States District Court, D. Oregon

February 28, 2019

TODD NICHOLSON, individually and on behalf of all others similarly situated, Plaintiff,
REI ENERGY, LLC, a limited liability company, Defendant.

          Kevin Chames ATTORNEY AT LAW, Ignacio J. Hiraldo, Manuel S. Hiraldo, HIRALDO P.A., Stefan L. Coleman, LAW OFFICES OF STEFAN COLEMAN, P.A., Attorneys for Plaintiff.

          Joel A. Parker SCHWABE, WILLIAMSON & WYATT, P.C., Walter A. Herring Jessica L. Spaniol Robin G. Bechtold, MUNCK WILSON MANDALA, LLP, Attorneys for Defendants.

          OPINION & ORDER


         Plaintiff Todd Nicholson brings this putative class action against Defendant REI Energy, LLC, alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and its regulations, 47 C.F.R. § 64.1200. Specifically, Plaintiff alleges that Defendant violated the TCPA when it called his cell phone using an automatic telephone dialing system (“ATDS”) without his prior written consent. Defendant now moves to stay this case pending action from the Federal Communications Commission (“FCC”) further defining what constitutes an ATDS. For the reasons that follow, the Court denies Defendant's Motion to Stay.


         I. Factual Background

         Defendant is a Texas corporation that “specializes in the acquisition, development, and management of conventional and unconventional oil and gas properties.” Compl. ¶¶ 2, 11, ECF I. Particularly relevant to the present motion, Plaintiff alleges that Defendant utilized a system that qualifies as an ATDS in contacting potential investors about oil or gas property investment opportunities. Id. at ¶ 11. Specifically, Plaintiff asserts that “the hardware and software used by Defendant has the capacity to generate and store random numbers and/or receive and store lists of telephone numbers, and to dial such numbers, en masse, in an automated fashion without human intervention.” Id. at ¶ 15. An expert retained by Plaintiff opined that the platform used by Defendant “has the capacity to dial telephone numbers from a stored list or database of numbers without human intervention.” Pl. Resp. Mot. Stay Ex. A (Snyder Decl.) ¶ 9, ECF 36-1. A corporate representative of Internatiocall testified that it made calls on behalf of Defendant from a list of numbers uploaded to a web-based platform and that the platform was not used to generate telephone numbers. Def. Mot. Stay (“Def. Mot.”) Ex. D (Bello Dep.) 60:23-25, ECF 35-4.

         Plaintiff, a resident of Portland, Oregon, first received a call from Defendant on his cellular phone on December 21, 2017. Compl. ¶¶ 1, 21. Despite having informed Defendant he was not interested and wanted the calls to stop, Plaintiff alleges that he received a second call on December 22, 2017. Id. at ¶¶ 23-24. He again informed Defendant that he “wasn't interested and terminated the call.” Id. at ¶ 24. Plaintiff alleges that Defendant has harmed consumers by making these calls and has disturbed Plaintiff's “use and enjoyment of his cellular telephone, ” caused wear and tear on the phone's hardware, and consumed memory on his cellular phone. Id. at ¶ 27. Plaintiff seeks an injunction against Defendant requiring it to cease these calling activities and an award of statutory damages along with costs and attorney's fees. Id. at ¶ 29.

         II. Legal Developments

         Plaintiff's claims arise under 47 U.S.C. § 227(b)(1)(A)(iii), which makes it:

[U]nlawful for any person within the United States . . . to make a call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States.

         This section 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. at § 227(a)(1).

         Between 2003 and 2015, the FCC issued several declaratory rulings and orders on what equipment qualifies as an ATDS under the TCPA. See Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1045 (9th Cir. 2018). On March 16, 2018, the Court of Appeals for the District of Columbia set aside certain aspects of the 2015 order.[1] ACA Int'l v. Fed. Commc'ns Comm'n, 885 F.3d 687, 692 (D.C. Cir. 2018). The circuit court found that the FCC's definition of ATDS was arbitrary and capricious. Id. at 693-705. The FCC had construed “capacity” in § 227(a)(1) as encompassing the potential functionalities of the equipment at issue. Id. at 693-94. The circuit court held that this expansive definition was unreasonable because it could include devices such as smartphones, which could be modified to function as an ATDS. Id. at 695-700. The court also noted that the 2015 order was unclear as to whether a device had to have the ability to generate random or sequential numbers to be dialed to constitute an ATDS or whether it could qualify as an ATDS without that capacity. Id. at 701-02. The court indicated that either interpretation might be permissible, but that “the Commission [could not], consistent with reasoned decisionmaking, espouse both competing interpretations in the same order.” Id. at 702-03.

         In September of 2018, the Ninth Circuit issued its opinion in Marks v. Crunch San Diego, LLC. There, the Ninth Circuit considered “anew . . . the definition of ATDS under the TCPA.” 904 F.3d at 1049-50. Specifically, the court was tasked with determining whether “to be an ATDS, a device must dial numbers generated by a random or sequential number generator or if a device can be an ATDS if it merely dials numbers from a stored list.” Id. at 1050. Interpreting § 227(a)(1), the circuit court found that the language of the statute was ambiguous, citing as support the D.C. Circuit's statement that either interpretation could be permissible. Id. at 1051. Ultimately, the court concluded that, “in its context and with a view to its place in the overall statutory scheme[, ]. . . 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 dial stored numbers automatically.” Id. at 1052 (internal citations and quotations omitted). In other words, ATDS as defined in § 227(a)(1) is “equipment which has the capacity-(1) to store numbers to be called or (2) to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.