Following the D.C. Circuit Court’s ruling in ACA International v. FCC , 885 F.3d 687 (D.C. Cir. Mar. 16, 2018), two US District Courts reached different conclusions regarding whether they were still bound by the FCC’s pre-2015 orders on what constitutes an ATDS under the TCPA. In John Herrick v. GoDaddy.com LLC, 2:16-cv-00254-DJH (D. Ariz. May 14, 2018), the District Court considered the relevant portions of the FCC’s prior TCPA interpretations in light of the ACA Int’l decision.
Given the lack of clarity on the issue, the [ACA Int’l court] “set aside” the FCC’s interpretations of “using a random or sequential number generator.” Order at p. 11 (citing ACA Int’l, 885 F.3d at 703). “As a result of the D.C. Circuit’s holding on this issue, this Court will not defer to any of the FCC’s “pertinent pronouncements” regarding the first required function of an ATDS, i.e., whether a device that has the capacity to store or produce telephone numbers “using a random or sequential number generator.” Id. (citing ACA Int’l, 885 F.3d at 701).
The District Court granted summary judgment on the basis that text messages sent to a set list and with human intervention were not sent by an ATDS. Conversely, in Reyes v. BCA Fin. Servs., 2018 U.S. Dist. LEXIS 80690 (S.D. Fla. May 14, 2018), the District Court held that despite ACA Int’l, the FCC’s prior orders regarding what constitutes an ATDS still apply:
[The] ACA International case has given the Court considerable pause. But the Court finds that the prior FCC Orders are still binding. Therefore, the ACA International case does not change the Court’s conclusion on the ATDS issue.” Reyes, 2018 U.S. Dist. LEXIS 80690 at *31-32. Further, the Court held “[w]hat ACA International did not do is endorse one interpretation [regarding whether a predictive dialers is an ATDS] over the other, even implicitly. ACA International did not say that a predictive dialer, or any other type of device, must be able to generate and dial random or sequential numbers to meet the TCPA’s definition of an autodialer. Nor did it say that a predictive dialer, or any other type of device, may lack that capacity. In fact, the D.C. Circuit said that ‘[i]t might be permissible for the Commission to adopt either interpretation.’ ACA Int’l, 885 F.3d at 703 (emphasis added). But what the FCC could not do was “espouse both competing interpretations in the same order.” Id. at *35.
The Court concluded, “[i]n this case, BCA Financial is essentially urging the Court to adopt the first interpretation—i.e., that a predictive dialer must be able to generate and dial random or sequential numbers to be an ATDS—based on ACA International’s authority. But ACA International does not compel that conclusion because it did not adopt that interpretation. At best, ACA International arguably calls into doubt the FCC’s previous broad statements that predictive dialers are ATDSs regardless of whether they call randomly or from a sequential list or a set list of numbers. But perhaps not, given that the D.C. Circuit did not adopt one interpretation over the other. In any event, as already explained, absent an express rejection of the prior FCC orders, the Court cannot deviate from them and impose my own interpretation of the TCPA.” Reyes, 2018 U.S. Dist. LEXIS 80690 at *35-36. The Court granted summary judgment in favor of the plaintiff on the basis that the equipment at issue was an ATDS as a matter of law.
For information regarding these decisions or their impact, contact Rebecca Saelao at rss@severson.com or Adam Vukovic at aav@severson.com