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TCPA Class Action & Litigation Update: West v. East — District Courts Split on Validity of pre-ACA Int’l FCC Orders re ATDS

Our previous post discussed the decision in Marshall v. CBE Group, Inc., which completely rejected the FCC’s broad interpretation of an ATDS and found in favor of the defendant. Since then, another district court in the Ninth Circuit has followed suit, but three others in the Eleventh Circuit have concluded that the FCC’s 2003 Order survives ACA Int’l. It could behoove some TCPA defendants to seek stays while this circuit split is sorted out or until after the FCC clarifies its position on the ATDS issue following ACA Int’l.

On May 14, 2018, the US District Court for the District of Arizona granted the defendant’s motion for summary judgment in Herrick v. LLC.[1] Judge Humetewa found that ACA Int’labsolutely did away with the FCC’s earlier predictive dialer pronouncements. The Judge squarely rejected reliance on the FCC’s Orders by characterizing them as “defunct.”[2] She went on to reject any subsequent district court rulings guided by the FCC’s Orders “because the FCC interpretations relied upon by these courts were driven by policy considerations and not the plain language of the statute.”[3] The Court also explained that any reading of the TCPA that included predictive dialers was plainly misguided because it broadened the definition of an ATDS to include any equipment that merely stores or produces telephone numbers in a database, which improperly renders the limiting phrase “using a random or sequential number generator” superfluous.[4] The Court concluded that the platform the defendant used to text consumers did not (1) have the ability to store or produce numbers to be called, using a random or sequential number generator and (2) involved human intervention throughout multiple stages.[5]

On the same day, the US District Court for the Southern District of Florida held that the FCC’s 2003 and 2008 predictive dialer rulings survive ACA Int’l, and remain good law. In Reyes v. BCA Fin. Servs., the Court granted summary judgment in favor of the plaintiff on the ATDS issue, holding that “the [] predictive dialer [at issue], as [defendant] use[d] it, is an ATDS under the TCPA.”[6] The Court reasoned that the parties did not dispute that the dialing system at issue was a predictive dialer or that the dialer automatically dialed phone numbers without human intervention. The Court also distinguished Marshall noting that the District Court of Nevada did not address whether the 2003 FCC Order remained binding and that unlike CBE, BCA had “presented no facts or evidence that it used a manual-clicker application or point-and-click function or similar human-intermediary utility before placing a call using [its] predictive dialer.”[7]

In Maddox v. CBE Group, Inc., the US District Court for the Northern District of Georgia also reasoned that the FCC’s 2003 Order survived ACA Int’l when granting the defendant’s motion for summary judgment. The Court noted that ACA Int’l rejected the FCC’s 2015 Order as an unreasonably broad expansion of the statute.[8] Unlike in Herrick, however, the Court relied on the FCC’s 2003 Ruling, which focuses the ATDS analysis on whether a system can dial numbers without human intervention. The Court first rejected the plaintiff’s argument that the defendant’s system qualified as an ATDS unless CBE’s agents manually dial each 10-digit telephone number one digit at a time. The Court concluded that “[t]he focus is on whether the system can automatically dial a phone number, not whether the system makes it easier for a person to dial the number.”[9] Because CBE’s system required an agent to click a bull’s-eye on a computer screen to place a call and did not use any kind of algorithm to engage in predictive dialing, the Court found the system did not qualify as an ATDS.[10]

Similarly, in Swaney v. Regions Bank, the US District Court for the Northern District of Alabama adopted a Magistrate Judge’s report and recommendation ruling that that the FCC’s 2003 predictive dialer ruling “still stands.”[11] Judge David Proctor reasoned that while the DC Circuit invalidated “certain portions” of the FCC’s 2015 Order, it did not invalidate the portion of the Order reaffirming the FCC’s 2003 determination that “while some predictive dialers cannot be programmed to generate random or sequential phone numbers, they still satisfy the statutory definition of an ATDS.”[12] The court noted the “primary consideration” under the 2003 Order is “whether human intervention is required at the point in time at which the number is dialed.”[14] According to Judge Proctor, the evidence showed that the defendant’s system lacked such human intervention.[14]

The argument for defendants seeking primary jurisdiction stays is all the more compelling given that courts in different circuits are reaching opposite conclusions regarding which (if any) of the FCC’s rulings on the ATDS issue survive ACA Int’l.



1  No. CV-16-00254-PHX-DJH, 2018 US Dist. LEXIS 83744 (D. Ariz. May 14, 2018).

2  Id. at *18.

3  Id.

4  Id. at *19.

5  Id. at *19-24.

6  No. 16-24077-CIV, 2018 US Dist. LEXIS 80690, at *4-5 (S.D. Fla. May 14, 2018) (emphasis in the original).

7  Id. at 38.

8  No. 1:17-CV-1909-SCJ, 2018 US Dist. LEXIS 88568, at *9 (N.D. Ga. May 22, 2018).

9  Id. at *11.

10  Id.

11  No. 2:13-cv-00544-JHE, 2018 US Dist. LEXIS 85217, at *2 (N.D. Ala. May 22, 2018).

12  Id. at *3.

13  Id.

14  Id.


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E. Crystal Lopez is a Mintz Associate who focuses her practice on class action defense, with an emphasis on consumer fraud, data privacy, marketing, and compliance issues claims. She has defended corporate clients against class actions at all stages of litigation.