Court Holds ACA International Invalidates 2003, 2008 and 2015 FCC Rulings Regarding ATDS Definition, And Plain Language of TCPA Does Not Support Claim

Pinkus v. Sirius XM Radio, Inc., No. 16 C 10858, 2018 WL 3586186 (N.D. Ill. July 26, 2018)

Plaintiff filed suit, alleging Defendant violated the TCPA by, among other things, placing more than 100 calls to his cell phone using an Automatic Telephone Dialing System (ATDS). After the D.C. Circuit's decision invalidating the 2015 FCC Declaratory Ruling in ACA International, Defendant sought dismissal of Plaintiff's claims, arguing that the technology used to place calls did not meet the plain language definition of an ATDS in the TCPA. Plaintiff disagreed, contending Defendant used a predictive dialer, which the 2003 and 2008 FCC Declaratory Rulings characterize as an ATDS.

Addressing Plaintiff's argument, the Court stated that ACA International rejected the FCC's understanding of the functions that equipment must have to qualify as an ATDS, overturning the Commission's ruling to reaffirm the notion that a device can be considered an ATDS even if it has no capacity itself to generate random or sequential numbers (and instead can only dial from an externally supplied set of numbers), i.e., a predictive dialer. In making this statement, the Court noted that ACA International's decision did not affirmatively conclude the FCC's understanding of what constitutes an ATDS was wrong but rather based on fatal inconsistencies in the Commission's reasoning. For example, at certain points, the 2015 Declaratory Ruling appeared to require that an ATDS be able to generate and then dial random or sequential numbers, whereas at others, suggested that equipment can meet the statutory definition of an ATDS even if it lacks the capacity to generate then dial random or sequential numbers. Notable to the Court was the FCC's statement in the 2015 Declaratory Ruling that it was reaffirming its 2003 ruling insofar as that order found predictive dialers qualify as an ATDS.

Holding that ACA International's invalidation of the 2015 Declaratory Ruling also invalidated the 2003 Order and 2008 Declaratory Ruling to the extent they provide that predictive dialers are ATDSs even if they do not have the capacity to generate and store phone numbers randomly or sequentially and then dial them, the Court noted ACA International's recognition that "even in [the] 2003 [Declaratory Ruling], the FCC saw a difference between calling from a list of numbers, on the one hand, and creating and dialing a random or arbitrary list of numbers on the other, adding that the D.C. Circuit "observed the 2003 Order -just like the 2015 Declaratory Ruling-elsewhere 'made clear that, while some predictive dialers cannot be programmed to generate random or sequential phone numbers, they still satisfy the statutory definition of an ATDS.'" The Court further noted that ACA International's concern that the 2015 Declaratory Ruling "'fail[ed] to satisfy the requirement of reasoned decisionmaking' due to the agency's 'lack of clarity about which functions qualify a device as an autodialer' thus applies with equal force to the 2003 Order,'" which also applies to the 2008 Declaratory Ruling that "simply 'affirm[ed] the understanding of ATDS articulated in the 2003 Declaratory Ruling."

As further support for its conclusion that ACA International invalidated the 2003 Order and 2008 Declaratory Ruling, the Court pointed to the FCC's argument in ACA International that the D.C. Circuit did not have jurisdiction to entertain petitioner's challenge to the functions an ATDS must be able to perform because that issue was resolved by the 2003 and 2008 rulings. The FCC's argument was that because these orders had not been timely appealed, it was too late to raise the issue now. Rejecting this argument, the D.C. Circuit held that it was not barred from reviewing the FCC's "'pertinent pronouncements' given that the FCC's 'prior rulings left significant uncertainty about the precise functions an autodialer must have the capacity to perform.'"

Concluding that it was not bound by the 2003 Order or 2008 Declaratory Ruling, the Court concluded that Plaintiff did not state a TCPA claim, because the plain text of the TCPA requires that an ATDS have the capacity to generate telephone numbers randomly or sequentially, then dial those numbers something that was not alleged.

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