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A Bridge to Somewhere: Primary Jurisdiction Doctrine Applicable in TCPA Fax Cases and ATDS Suits Alike

The primary jurisdiction doctrine Eric wrote about a mere few weeks ago was on full display in a recent ruling granting a motion to stay in a junk-fax TCPA class action.

In Scoma Chiropractic, P.A., et al v. Dental Equities, LLC, et al., 2018 U.S. Dist. LEXIS 92736, the District Court for the Middle District of Florida granted a motion to stay brought by one of the defendants, pending a ruling by the FCC on the Petition for Expedited Declaratory Ruling of AmeriFactors Financial Group, LLC, CG Docket Nos. 02-278, 05-338, filed July 13, 2017.  That petition seeks a ruling that e-faxes and other faxes not sent or received with an actual fax machine are not within the definition of a “telephone facsimile machine” under the TCPA.

The defendant in Scoma had moved for a stay on the basis that a ruling on the AmeriFactors petition would address one of the key issues in the case: whether the online fax services used to send some of the faxes at issue was a “telephone facsimile machine” (TFM) under the TCPA, and that a stay was therefore warranted under the primary jurisdiction doctrine.  The court agreed, holding that a stay was warranted because deferring to the FCC would “advance the basic purpose of the [primary jurisdiction] doctrine because the specialized knowledge of the FCC is needed to answer the questions before the Court[.]”  2018 U.S. Dist. LEXIS 92736 at *8.  Whether “TFMs encompass online fax services is a matter of defining a technical term and Congress has explicitly tasked the FCC with prescribing regulations to implement the requirements of the TCPA, including the subsection prohibiting unsolicited facsimile advertisements.”  Id. at *9.

The Court noted that although there had been prior occasions when the FCC addressed whether certain computerized faxing technology falls within the TCPA’s prohibitions, “the last occasion was in 2015, and none appear to be directly applicable to the issues raised here with regard to sending and receiving faxes using cloud-based servers, raising a potential first-impression interpretation for the FCC.”  2018 U.S. Dist. LEXIS 92736 at *9.

Quite simply, deferring to the FCC was “necessary for a uniform interpretation of the statutory questions at issue.”  2018 U.S. Dist. LEXIS 92736 at *8-9.  The Court emphasized the fact that if the case proceeds, “there is a risk that the Court could reach a determination that is inconsistent with the FCC’s ultimate decisions on the AmeriFactors Petition, and this Court is ultimately bound to adhere to the FCC’s interpretation of the TCPA.”  2018 U.S. Dist. LEXIS 92736 at *9, internal citation omitted.

That sentiment of uniformity in the law, detailed here earlier by Eric, assures that the FCC’s policy choices are deferred to by courts and is crucial in the administration of the TCPA given the vagueness of many of its provisions.  Although the issues here involve a different petition, they have strong parallels to the FCC petition relation to ACA issues.  At their heart, both petitions are about whether a piece of technology falls within one of the definitions set forth in the TCPA.  The reasoning as to applying the primary jurisdiction doctrine is equally as applicable, and illustrates the importance of these stays.

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.


About this Author

Artin Betpera, Class action litigation lawyer, Womble
Senior Counsel

Artin serves as a chief lieutenant on one the nation’s most experienced and powerful class action defense teams.  Precise and analytic, Artin brings over a decade of experience to bear on complex litigation problems.

Artin adeptly manages significant volumes of litigation for some of the country’s largest banks and financial institutions, never losing sight of providing an exceptional level of service to his clients.  He has been a dedicated financial services litigator since starting the practice of law at ground-zero of the financial crisis, affording him with...

Erin Kubota Attorney California Womble Bond Dickinson
Senior Counsel

Erin represents clients in commercial litigation matters in both federal and state courts and has tried several month-long cases before juries in California. Erin’s practice encompasses all aspects of complex commercial litigation, including in state and federal courts and at both the trial and appellate levels. She represents banks, financial institutions and companies in litigation involving the Telephone Consumer Protection Act, the Uniform Commercial Code, the Electronic Funds Transfer Act, the Bank Secrecy Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Truth in Lending Act, fraud, breach of contract, unfair competition, and other matters.

Prior to joining Womble Bond Dickinson, Erin worked as in-house counsel at a large national bank in its Consumer Lending and Corporate Regulatory Division.  In that role, she advised various business lines in the indirect auto lending space on all originations and servicing related issues.

Erin has also managed and supervised a portfolio of bank operations litigation matters for a large national bank for many years, including managing a team of attorneys and paralegals.  In that role, Erin acted as lead attorney on cases and developed a deep substantive knowledge of the Uniform Commercial Code and other areas of law.  During the decade-plus time she spent in this role, she has successfully tried several month-long cases before juries in California.

Erin also worked at the California Attorney General’s Office as a Deputy Attorney in the Health, Education, and Welfare Section.

Erin is admitted to practice in all state and federal courts in California.


  • J.D., 2003, Cornell Law School
  • B.S., 2000, University of California, San Diego
Joshua Anderson Attorney California Womble Bond Dickinson

Josh is a commercial litigation attorney whose practice includes representing clients in the areas of consumer finance, with an emphasis on Telephone Consumer Protection Act (TCPA) cases and compliance, class action defense, and all aspects of business litigation.  In his business litigation practice, he has successfully represented clients in matters ranging from breach of contract and contract interpretation to breaches of fiduciary duty, unfair competition, misappropriation of trade secrets, and partnership disputes.  He represents clients in federal and California state courts.


Martin L. Stern, Womble Carlyle Law Firm, Regulatory Policy Attorney

Mr. Stern provides legal and strategic counsel on regulatory, policy and commercial matters to telecommunications, information technology and media firms, including network operators, programmers, and technology companies, in the United States and globally.  He represents clients before the Administration, Congress, and federal agencies, including the FCC, U.S. Departments of Justice, Commerce, Transportation, and Homeland Security, FTC, White House Office of Science and Technology Policy, and CFIUS.  He also develops and executes regulatory and legislative strategies,...