Raitport, et a l . v . Harbour Capital 09-CV-156-SM 9/12/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Menachem Raitport, and Crown Kosher Meat Market, Inc., Plaintiffs

v. Case N o . 09-cv-156-SM Opinion N o .

Harbour Capital Corporation, Defendant

O R D E R

The amended proposed class definition in this case is

premised upon a doubtful proposition of law — that the Federal

Communication Commission can, by regulation, govern specific

business activity that Congress did not regulate by statute (and,

implicitly did not authorize the FCC to regulate) — the sending

of “solicited” facsimile advertisements. Congress surely

intended to protect citizens from the impositions associated with

unwanted, unwelcome, “unsolicited” facsimile advertisements, but

likely did not think it necessary to protect citizens from

“solicited” facsimile advertisements — ones they invited and

affirmatively wished to receive.

Resolution of that question, however, is beyond the

jurisdiction of this court. Congress has provided a limited

administrative review process for such issues, followed by

judicial review in the courts of appeals. Following the Eighth Circuit’s decision in Nack v . Walburg,

(8th Cir. 2013), administrative proceedings were

initiated that seek resolution of the precise question of law

underlying this litigation. See Petitions, FCC Proceeding Nos.

02-278 and 05-338.

Given the substantial effect that the outcome of the pending

administrative proceedings will have on disposition of the

pending issues in this case, particularly with respect to

certification of the proposed class, this litigation shall be

stayed pending a final decision in those matters.

Should any party oppose staying these proceedings, the court

will consider motions to lift the stay (supported by thorough

briefing) filed within thirty (30) days of the date of this

order.

Conclusion

All proceedings in this case are stayed pending final

resolution of the relevant petitions in FCC Proceeding Nos. 02-

278 and 05-338. The Clerk shall administratively close this

case, subject to reopening on motion of any party following final

resolution of the above-referenced administrative proceedings.

2 SO ORDERED.

t—^^^'^^^^^^^

Steven J./McAuliffe Jnited States District Judge

September 1 2 , 2013

cc: Aytan Y . Bellin, Esq. Michael J. Sheehan, Esq. William E . Christie, Esq.

3