A federal judge in New Jersey last week denied motions to dismiss and applications for temporary stays pending new guidance from the Federal Communications Commission in a pair of lawsuits alleging violations of the Telephone Consumer Protection Act.
Both cases involve class-action lawsuits filed against Freedom Mortgage Corp. In one case — Somogyi v. Freedom Mortgage Corp. — the plaintiff alleges the defendant violated the TCPA by making calls to the plaintiff’s cell phones without receiving prior consent. In the other case — Sieleman v. Freedom Mortgage Corp.– the plaintiff alleges the defendant violated the TCPA by using an automated telephone dialing system to place calls to his cell phone without his consent.
The judge in the case denied an application to stay the proceedings until the FCC issues new guidance related to the TCPA because even after the guidance is issued, what defines an automated telephone dialing system is not likely to change.
“Since the statutory definition of an ATDS (as opposed to the FCC’s interpretation of an ATDS) was not questioned in either ACA International or Dominguez, the Court finds it is unnecessary to issue a stay at the present time,” Judge Jerome Simandle wrote. “Whatever guidance the FCC may issue in the future will not alter the statutory definition of an ATDS. In other words, telephone dialing equipment that ‘has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator’ qualifies as an ATDS today, just as it will following any future FCC guidance.”
In acknowledging that the Court of Appeals for the District of Columbia ruling in ACA International v. FCC invalidated what defines an ATDS, Judge Simandle followed some of his brethren by ruling that previous orders issued by the FCC — in 2003 and in 2008 — are the law of the land until new guidance is promulgated.