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District Court Rules Predictive Dialers are ATDS’s Because FCC Rulings Survive ACA International Result

A judge in the District Court for the Southern District of Florida has partially granted a summary judgment in favor of a plaintiff who sued a collection agency alleging violations of the Telephone Consumer Protection Act because the automatic telephone dialing system used by the agency qualifies as an autodialer, even though it did not have the capacity to generate random or sequential numbers.

A copy of the ruling in the case of Reyes v. BCA Financial Services can be accessed by clicking here.

BACKGROUND

The plaintiff received six calls from BCA, which was actually trying to reach someone else who had provided the plaintiff’s cell phone number on a medical consent form. Five of the calls went unanswered and the sixth, which was made by an Interactive Voice Response system, was answered and the plaintiff pressed a number on her phone indicating that the defendant had the wrong number. The defendant did not contact the plaintiff after that call.

The issue in question is whether the technology used to contact the plaintiff was an autodialer or not. The  judge in this case, Judge Jonathan Goodman, ruled that the technology was an autodialer by parsing a ruling from the Court of Appeals in ACA International v. the Federal Communications Commission, and a pair of orders from the FCC, which were issued in 2003 and 2008 respectively.

In looking at the 2003 and 2008 orders, which determined that predictive dialers fall under the definition of autodialers, Judge Goodman ruled that the technology used by the defendant is an ATDS and granted the plaintiff’s motion for summary judgment. Judge Goodman denied a motion for summary judgment that the defendant acted willfully and that the plaintiff is not entitled to treble damages, and denied a motion based on the defendant’s use of a pre-recorded voice.

Because the ruling from the Appeals Court in the ACA case did not overrule the 2003 or 2008 orders from the FCC, they still must be enforced, the judge ruled.

Specifically, what ACA International did was to reject the FCC’s have-your-cake- and-eat-it-too approach to the questions before it. The FCC was of “two minds on the issue” of whether “a device must be able to generate and dial random or sequential numbers to meet the TCPA’s definition of an autodialer,” or whether “that equipment can meet the statutory definition even if it lacks that capacity.” The FCC answered “yes” and “yes,” i.e., it must have that ability and it may lack that ability, two conflicting answers that the D.C. Circuit could not accept because it provided no meaningful guidance.

But what ACA International did not do is endorse one interpretation 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.”

In 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.

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