The TCPA has been in more-or-less constant upheaval since July, 2015. The events of the last two weeks in TCPAland have been relentless and breathtaking in their immediate and potential significance.

Chief among these recent developments is the FCC’s Public Notice seeking comment on the scope and architecture of the TCPA. This development is crucial to TCPA litigants and not just because it opens the door to potential TCPA clarity by the hands of a Republican-leaning Commission. The FCC taking its first (new) affirmative step toward clarifying the definition of Automated Telephone Dialing System (“ATDS”) and “called party” should also issue in an era of judicial deference in all pending TCPA litigation.

To fully understand the importance of the FCC’s recent actions and why the courts are likely to defer to the Commission’s process, we need to start with a first principle: Under the separation of powers doctrine, Congress makes the laws and not the courts. While the courts sometimes serve as interpreters of vague statutes, they are always tasked with fulfilling the mission of Congress in doing so. They are not vested with any sort of law-making capability in the first instance. This is because courts do not weigh policy decisions or undertake to build broad-ranging factual records to make law for society at large. They simply decide disputes before them under the applicable law.

Legislative agencies, like the FCC, on the other hand, are different. They are like a little miniature version of Congress. They too are entitled to make the law, albeit only within the limited authority that Congress has specifically delegated to them and even then, only if they are using their specialized expertise and fact gathering abilities to clarify the laws that Congress has set forth. But they have the tools available to build robust factual records, weigh policy considerations, and hire and retain expert staff members to assist in evaluating complex issues in an effort to reach uniform and sensible regulations that apply across the country. (Of course, they don’t always succeed.)

When it comes to interpreting a vague statute, therefore, the courts have repeatedly recognized the importance of deferring to the legislative agencies trusted by Congress to interpret the Act. The resulting doctrine–known as “primary jurisdiction”–has now been applied by every Circuit Court of Appeal in the nation and assures that policy choices adopted by legislative agencies are obeyed by the Courts, and that a uniform rule of law prevails.

The Ninth Circuit–my home court– has particularly robust case law respecting the primary jurisdiction doctrine. See Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 780 (9th Cir.2002). The Syntek test looks at three factors: “(1) the need to resolve an issue that has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (2) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (3) requires expertise or uniformity in administration.” Syntek, 307 F.3d at 781. If these three factors are met, then the courts are directed to stay or dismiss cases to allow the agency to do its good work. Otherwise courts risk issuing decisions that are contrary to agency determinations–or to each other–which causes uncertainty for all and/or embarrassment for many.

Ultimately the primary jurisdiction doctrine is a rule of common sense. If an agency is set to resolve a disputed issue of statutory interpretation that will be binding across the country, why would a court jump the gun and resolve that same issue for itself before the agency has its chance to speak? Its simply a bad idea, and the primary jurisdiction doctrine exists to prevent it.

In the context of the FCC’s proceeding to clarify the TCPA–now under way– it is clear that the Syntek factors favor a stay of proceedings in any litigation requiring an interpretation of the phrase “ATDS” or “called party.” The TCPA is vague and the FCC is the agency trusted by Congress to interpret it in the first instance. The FCC has the tools needed to build a record to support the important policy choices it needs to make in applying the statute–and it has begun that process. It also has specialized expertise with respect to the technology available to the telecommunications industry and the needs of American businesses and telephone consumers alike. It can bring all of these tools to bear in interpreting the TCPA, and it has stated its intention to do just that.

Asking a Court to rule on the definition of “ATDS” or “called party” while the FCC is already hard at work seeking clarity on both points, therefore, is overly-exuberant, at best, and foolhardy, at worst. The results can plainly be seen in last week’s embarrassing spectacle  in which two courts reached exactly opposite conclusions regarding the scope of the TCPA on the same day.

Luckily for TCPA defendants, this trail has already been blazed for them and to good effect. Although I cannot claim to have invented the primary jurisdiction doctrine, I did obtain one of the first rulings in the country applying the doctrine to stay a TCPA class action. that ruling came in Heinrichs v. Wells Fargo, CASE #: 3:13-cv-05434-WHA, Doc. 56 (N.D. Cal. April 14, 2014). There, we convinced the a court in the Northern District of California to stay a pending TCPA class action in light of the ongoing flurry of activity that lead up to the Omnibus TCPA ruling.  (You can find the decision here– Heinrichs). Numerous other decisions staying TCPA cases on primary jurisdiction followed in the wake of Heinrichs, so there is plenty of authority to aide TCPA defendants asking courts to stay litigation and defer to the Commission’s proceeding.

To date no court has yet stayed a case pending the FCC’s newest proceeding to clarify the TCPA, but it has only been a week. If TCPA defendants do their job and present well-supported and articulate arguments to the courts, I predict an avalanche of stay orders coming down over the next few months. The reason is simple–the smell of finality is (finally) in the air here in TCPAland, and courts should not be shy about staying cases pending the FCC’s TCPA proceeding.  This is necessary both to assure a uniform rule of law and to assure that the FCC’s policy choices–when they are finally made in accordance with the D.C. Circuit Court of Appeal’s directive–are deferred to by the courts in accordance with the separation of powers doctrine.