United States District Court, D. Oregon
TODD NICHOLSON, individually and on behalf of all others similarly situated, Plaintiff,
REI ENERGY, LLC, a limited liability company, Defendant.
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.
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
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
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.
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.
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 ¶
claims arise under 47 U.S.C. § 227(b)(1)(A)(iii), which
[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
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 §
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. 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.
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 ...