District Court (Pa.) Says TCPA Defendant Used ATDS Because No Human Intervention Was Required

In Morse v. Allied Interstate, LLC, — F.Supp.3d —-, 2014 WL 7004036 (M.D.Pa. 2014),  Judge Nealon granted Plaintiffs’ Motion for Partial Summary Judgment on a TCPA case, finding that the defendant had used an ATDS.

Here, the parties agree there was no human intervention at the time the calls were placed. The calls were made without a human contemporaneously dialing the number as Defendant’s dialing software is automated with no manual intervention needed. (Doc. 23, ¶¶ 5 & 8) admitted in (Doc. 29–1, ¶¶ 5 & 8). Defendant’s “dialer,” which loads five thousand (5,000) numbers per interval to be called and transferred to available operators upon human contact, is called “Aqrate.” (Doc. 22–6, pp. 8–15). This technology is precisely that contemplated by the FCC in the 2003 and 2008 Orders, a predictive dialer which “calls them at a rate to ensure that when a consumer answers the phone, a sales person is available to take the call,” which was determined by the FCC to be an ATDS. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd 559, 563 n. 23 (January 4, 2008), citing In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd 14014, 14091, 1131 (June 26, 2003); see also Dominguez, 8 F.Supp.3d 643 (“[T]his Declaratory Ruling pertains to the unique characteristics of predictive dialers.”). Accordingly, under both FCC Orders Defendant’s system is an ATDS and the calls in question violated the TCPA. Defendant urges this Court to disregard the FCC Orders because the statutory language FN3 is clear and unambiguous and Congress did not specifically grant the FCC authority to regulate the definition section of the statute. Defendant argues that the FCC lacks the authority to modify a statutory definition of an ATDS and that this Court’s analysis of the definition of ATDS should begin and end with the language of the statute. (Doc. 34, pp. 1–4). Defendant believes Congress had “clear intent to reserve the FCC’s rule-making authority to those topics set forth in §§ 227(b)(2) and (c)(1).” (Doc. 34, p. 10). Defendant submits that the FCC advisory opinions in question pertain to the definitions section of the TCPA ( § 227(a)) and Congress did not delegate the rule-making or regulatory authority to the FCC over the definitions,FN4 and, accordingly, the Hobbs Act and Chevron deference are immaterial. (Doc. 34, pp. 5–10), citing Marks v. Crunch San Diego, LLC, 2014 U.S. Dist. LEXIS 152923 *6–7 (S.D.Cal.2014) (holding that the FCC’s 2003 statutory interpretation of an ATDS is not binding on district courts because the language is clear and unambiguous and the FCC does not have the authority to change the TCPA’s definition of an ATDS). Defendant subsequently argues that the definition of an ATDS is unambiguous and requires the use of a random or sequential number generator, and that Defendant does not use such a number generator. (Doc. 34, pp. 10–11). Regarding the term “capacity,” Defendant asserts that Defendant’s system in its present capacity cannot store or produce randomly or sequentially generate telephone numbers. (Doc. 34, p. 12).  However, Plaintiff correctly argues that the Hobbs Act requires application of the 2003 and 2008 FCC Orders. (Doc. 33, pp. 8–14). The Administrative Orders Review Act, better known as the Hobbs Act, 28 U.S.C. §§ 2341–2351, expressly grants federal courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of all final orders of the Federal Communications Commission.” 28 U.S.C. § 2342; FCC v. ITT World Communications. Inc., 466 U.S. 463, 468, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984) (“Exclusive jurisdiction for review of final FCC orders … lies in the Court of Appeals.”); New Jersey v. United States NRC, 526 F.3d 98, 101–02 (3d Cir.2008); see also Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir.2014)( “The 2008 FCC Ruling is a Hobbs Act final order…. The 2008 FCC Ruling thus has the force of law and is an order reviewable under the Hobbs Act in the court of appeals.”). “This procedural path created by the command of Congress ‘promotes judicial efficiency, vests an appellate panel rather than a single district judge with the power of agency review, and allows ‘uniform, nationwide interpretation of the federal statute by the centralized expert agency created by Congress’ to enforce the TCPA.” Mais, 786 F.3d at 1119, citing CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 450 (7th Cir.2010) (quoting United States v.. Dunifer, 219 F.3d 1004, 1008 (9th Cir.2000)); see also Nack v. Walburg, 715 F.3d 680, 685 (8th Cir.2013), cert. denied, 134 S.Ct. 1539, 188 L.Ed.2d 581 (2014). In other words, “district courts cannot determine the validity of FCC orders.” Mais, 786 F.3d at 1119, citing Self v. Bellsouth Mobility, Inc., 700 F.3d 453, 461 (11th Cir.2012); see also Leyse v. Clear Channel Broadcasting, Inc., 545 Fed. Appx. 444, 455 (6th Cir.2013) (holding that Congress intended FCC rules like the 2003 Order to have force of law reviewable only by the courts of appeal). “Hobbs Act jurisdictional analysis looks to the ‘practical effect’ of a proceeding, not the plaintiff’s central purpose for bringing suit.” Mais, 786 F.3d at 1120; B.F. Goodrich Co. v. Nw. Indus., Inc., 424 F.2d 1349, 1353–54 (3d Cir.1970) (“The statutory procedure for review is applicable although an order is not directly attacked—so long as the practical effect of a successful suit would contradict or countermand a Commission order.”). “The district courts lack jurisdiction to consider claims to the extent they depend on establishing that all or part of an FCC order subject to the Hobbs Act is ‘wrong as a matter of law’ or is ‘otherwise invalid .’ “ Mais, 786 F.3d at 1120, citing Self, 700 F.3d at 462.  Defendant’s attempt to differentiate the Mais decision is unpersuasive. Defendant argues Mais pertains to section 227(b)(1)(a), as opposed to section 227(a)(1) at issue sub judice, and that Congress expressively granted the FCC authority “to prescribe regulations to implement the requirements” of section 227(b)(1)(a) but not of section 227(a)(1). (Doc. 34, pp. 8–9), citing 47 U.S.C. § 227(b)(1). The Hobbs Act is clear and in no way indicates that a district court can disregard final orders of the FCC simply because Congress did not specifically grant the FCC express authority to regulate a specific subsection of the TCPA. Moreover, a decision as to whether the FCC exceeded its authority is to be made by the courts of appeals. See 28 U.S.C. § 2342. Because the Hobbs Act prevents this Court from questioning the validity of the 2003 and 2008 FCC Orders, they will be applied. ITT World Communications, Inc., 466 U.S. at 468; United States NRC, 526 F.3d at 101–02 (3d Cir.2008): see also Hartley–Culp v. Green Tree Servicing, LLC, 2014 U.S. Dist. LEXIS 145851, *5–6 (M.D.Pa.2014) (Munely, J.) (following “binding precedent” and Hobbs Act in following FCC Orders); Anderson v. AFNI, Inc., 2011 U.S. Dist. LEXIS 51368, *32 (E.D.Pa.2011), but see Dominguez v. Yahoo! Inc., 8 F.Supp.3d 637 *19 (E.D.Pa.2014).  As stated above, under the Orders, Defendant’s dialing system is an ATDS under the TCPA and the three-hundred fifty-six (356) phone calls placed to Plaintiff’s cellular phone were in violation of the TCPA. Accordingly, under section 47 U.S.C. § 227(b)(3) Plaintiff is entitled to $500 in damages per phone call. A determination on treble damages is left for a jury.