In King v. Time Warner Cable, Inc., 2018 WL 3188716 (2d Cir. 2018), the Court of Appeals for the Second Circuit offered its interpretation of what constitutes an “ATDS” after ACA Int’l.
As noted above, in concluding that Time Warner’s calls to King violated the TCPA, the district court relied on the FCC’s 2015 Order, which broadly construed the term “capacity” and thus extended the TCPA to reach any device that could be modified by software changes to perform the functions of an autodialer. In the wake of ACA International, which invalidated that Order and thereby removed any deference we might owe to the views the FCC expressed in it, we must decide independently whether the district court’s broad understanding of the “capacity” a device must have in order to qualify as an ATDS under the TCPA is a supportable interpretation of the statute. We conclude that it is not. Although we are not bound by the D.C. Circuit’s interpretation of the statute, we are persuaded by its demonstration that interpreting “capacity” to include a device’s “potential functionalities” after some modifications extends the statute too far. Instead, we agree with the D.C. Circuit that the term “capacity” is best understood to refer to the functions a device is currently able to perform, whether or not those functions were actually in use for the offending call, rather than to devices that would have that ability only after modifications. . .Although the D.C. Circuit was deciding only whether the FCC’s specific interpretation was a reasonable one, rather than announcing what that court itself deemed to be the best interpretation of the statute, its analysis informs our understanding of the statutory text. We view the D.C. Circuit’s discussion as correctly drawing a distinction between a device that currently has features that enable it to perform the functions of an autodialer—whether or not those features are actually in use during the offending call—and a device that can perform those functions only if additional features are added. We find that distinction persuasive; accordingly, we would conclude that the former category of devices falls within the definition of an ATDS, and the latter does not. See Herrick v. GoDaddy.com LLC, No. CV-16-00254-PHX-DJH, 2018 WL 2229131, at *6 (D. Ariz. May 14, 2018) (concluding that ACA International’s reasoning directs courts to determine “ ‘how much’ would be required to enable such capacity”); Gragg v. Orange Cab Co., 995 F.Supp.2d 1189, 1196 (W.D. Wash. 2014) (in a case predating the 2015 Order, rejecting the argument that “a system that has to be reprogrammed or have new software installed in order to perform the functions of an ATDS [is] an ATDS”). . . In sum, we conclude that the term “capacity” in the TCPA’s definition of a qualifying autodialer should be interpreted to refer to a device’s current functions, absent any modifications to the device’s hardware or software. That definition does not include every smartphone or computer that might be turned into an autodialer if properly reprogrammed, but does include devices whose autodialing features can be activated, as the D.C. Circuit suggested, by the equivalent of “the simple flipping of a switch.” ACA Int’l, 885 F.3d at 696. Within those bounds, however, courts may need to investigate, on a case-by-case basis, how much is needed to activate a device’s autodialing potential in order to determine whether it violates the TCPA. Applying those principles in the present case, we conclude that the district court’s grant of partial summary judgment relied on an incorrect interpretation of the statute that was in turn premised on deference to an FCC Order that is no longer valid. The record does not permit us to conclude, as a matter of law, that Time Warner’s system has the requisite “capacity,” as we understand it, to meet the definition of an autodialer regulated by the TCPA. Nor does it permit us to conclude the opposite. On the present record, we do not know whether Time Warner’s system had the ability to perform the functions of an ATDS when it made the calls to King, nor what kinds of modifications might be required to permit it to do so. Accordingly, the matter is remanded to the district court to take up those questions in the first instance.