A District Court judge in Florida has granted a stay in a Telephone Consumer Protection Act case to see how the Federal Communications Commission moves forward with its definition of an automated telephone dialing system.
A copy of the ruling in the case of Barnes v. CS Marketing can be accessed by clicking here.
It appears that a growing number of judges in the Southern District of Florida have stayed TCPA cases in order to see how the FCC decides to define an ATDS.
The FCC issued a new definition of an ATDS back in July 2015 as part of a Declaratory Order, which was challenged by ACA International. That definition said that an ATDS as any technology that had the “capacity” to perform the functions of an autodialer. Many had demonstrated that an everyday smartphone could be defined as an autodialer based on the FCC’s ruling.
The D.C. Court of Appeals struck down the FCC’s new definition of an ATDS and charged the regulator with developing a new definition, which it has been working on for more than a year.
In this case, the defendants are accused of making telemarketing calls to the plaintiffs’ cell phones without first receiving the consent to do so. The success of the plaintiff’s lawsuit depends on whether the calls were made using an ATDS.
Along with waiting for the FCC’s new definition, there is a pending case before the Eleventh Circuit Court of Appeals — Glasser v. Hilton Grand Vacations — in which the plaintiff is appealing a summary judgment award in favor of the defendant, which was accused of using an ATDS to make telemarketing calls.
All of this uncertainty has led Judge Cecilia Altonaga of the District Court for the Southern District of Florida to hit the pause button on this lawsuit and see which way the ATDS definition winds end up blowing. Judge Altonaga noted that the plaintiffs “will suffer little prejudice” by having to wait for a ruling from the Eleventh Circuit or some news from the FCC.
“…if the FCC adopts a definition that provides — as the defendant in Glasser suggests — that to be an ATDS, equipment must (a) use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention, or (b) that predictive dialers do not meet the statutory ATDS definition, that decision will bind the Court and may require dismissal or summary judgment in Defendants’ favor,” Judge Altonaga wrote.
