Does the Telephone Consumer Protection Act (TCPA) and its accompanying regulations permit a person to recover damages against a satellite television provider for phone calls violating the national do-not-call list that were made by independent contractors of the provider and not the provider itself?  Although this issue was presented to the Sixth Circuit, the court ruled last Thursday that the answer turns on the meaning of several provisions of the TCPA and its regulations, and thus the matter should be addressed by the Federal Communications Commission (FCC), which administers the TCPA.  See Charvat v. EchoStar Satellite, LLC (6th Cir., Case No. 09-4525) (PDF).

The case against EchoStar is the latest in a series of lawsuits filed by the plaintiff, Philip Charvat, under the TCPA.  Since 1998, Charvat has filed claims against at least twelve defendants in at least thirteen different lawsuits under the Act.  In his latest lawsuit, Charvat filed claims against EchoStar under the TCPA (found principally at 47 U.S.C. § 227) as well as under several FCC regulations and Ohio law.  The district court dismissed four of Charvat’s claims and granted summary judgment to EchoStar on the remaining claims.

On appeal, the Sixth Circuit invited the FCC to weigh in on several questions presented by Charvat’s appeal involving the meaning of the TCPA’s provisions and its regulations relating to who may be sued for illegal calls made.  In response, the FCC, which has statutory authority to interpret the TCPA, suggested that the Sixth Circuit would need to refer the matter to the agency under the doctrine of primary jurisdiction in order to address all the issues presented.  In an opinion written by Judge Sutton, the Sixth Circuit agreed that referral was appropriate.

Under the doctrine of primary jurisdiction, a court is allowed to refer a matter to the relevant federal agency whenever the enforcement of a claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.  As Judge Sutton noted, courts have considered referring matters to agencies for various reasons, including (1) to advance regulatory uniformity, (2) to answer a question within the agency’s discretion, and (3) to benefit from technical or policy considerations within the agency’s expertise.  After considering this trio of reasons (uniformity, discretion, expertise), the Sixth Circuit concluded that Charvat should proceed before the FCC (to which Charvat did not object).  The Sixth Circuit also permitted the parties to file briefs with the Sixth Circuit within 60 days of the FCC’s ruling to advise the court about the agency’s action and its significance to Charvat’s appeal.

We’ll continue to monitor developments in Charvat’s case against EchoStar.