Avid, in AGs' TCPA Case, Seeks FCC's Determination on Issues Involving Tracebacks

In a robocall case brought by the attorneys general of 48 states against Avid Telecom and executives Michael Lansky and Stacey Reeves, the plaintiffs’ opposition brief “reflects some confusion about the requirements and application of the primary jurisdiction doctrine,” said the defendants’ reply brief Friday (docket 4:23-cv-00233) in U.S. District Court for Arizona in Tucson in further support of their motion to stay and refer as a matter of primary jurisdiction to the FCC.

Defendants believe they have demonstrated “under well-established law, that a primary jurisdiction referral is particularly appropriate where, as here, there is a critical need for the involvement of an expert agency to ensure national uniformity,” said the brief. “Piecemeal decision-making by individual courts across the nation does not work in a dynamic industry like telecommunications -- which requires a deep understanding of the policy implications of key policy decisions -- and common set of known and understood rules -- that are applied regardless of where a call originates or terminates,” it said.

The current “chaotic patchwork of rules and regulations will become irretrievably unmanageable -- posing a threat to our critical telecommunications infrastructure -- if each court is allowed to create its own regulatory framework,” the brief said.

The AGs' May 23 complaint alleged Avid, Lansky and Reeves facilitated robocalls or helped others make them (see 2305240010). It alleged the defendants received 329 notifications from the USTelecom-led Industry Traceback Group, putting them “on notice” that Avid was transmitting illegal robocalls. The plaintiffs argued Avid, Lansky and Reeves “chose profit over running a business that conforms to state and federal law,” instead of implementing procedures to prevent or mitigate robocalls. In their motion to dismiss, the defendants asserted they "met every applicable regulatory obligation" and haven't violated the law.

The defendants are not seeking a dismissal of the case, so a referral to the FCC “creates no risk” to the court’s authority “or ability to rule as it sees fit, while providing a procedure for it to obtain expert advice,” said the reply. Defendants asked the court “as a matter of comity and respect" among the federal courts and the expert federal agencies that the court invoke "the prudential doctrine of primary jurisdiction, stay the instant litigation and refer questions at issue” to the FCC, or the FTC, whichever the court deems relevant.

In their proposed primary jurisdiction referral order Friday, defendants seek to have the matter referred to the primary jurisdiction of the FCC to clarify rules regarding the grant of consent by a party receiving inbound voice communications, including the means by which consent can be given; whether a called party can grant consent to more than one entity at a time; what information needs to be provided by a party to grant its consent to receive calls; and what the obligation is of a common carrier to rely on the representation of consent by a calling party, said the brief.

Other questions plaintiffs seek to have addressed: Whether a VoIP-based provider of long-distance telecommunications services is a common carrier subject to applicable exemptions; whether a traceback can be based on information obtained from a call that was recorded illegally; whether a traceback can be based on information that was obtained from the illegal scraping of data from the called party’s voicemail; and whether a traceback can be issued by anyone other than the Industry Traceback Group.

They also seek to have answered whether a traceback can be based on a call delivered to a business phone that was improperly placed on the do not call registry, “which is only for residential phone numbers”; whether the delegation of authority by the FCC to the Industry Traceback Group authorizes it to determine if a call is legal; and the statute of limitations under the Telephone Consumer Protection Act.

Upon receipt of the FCC’s response the parties will promptly notify the court, “at which point the Court will lift the stay and schedule further proceedings to conclude this matter,” said the brief.