In May 2018, the D.C. Circuit set aside the FCC’s “unreasonably expansive interpretation” of what equipment constitutes an automatic telephone dialing system (“ATDS”). See ACA International v. Federal Communications Commission, No. 15-1211 at 5 (D.C. Cir. 2018). The FCC’s 2015 promulgations broadly interpreted the TCPA’s statutory language, subjecting “ordinary calls from any conventional smartphone to the Act’s coverage.” Id. at 5. This unconfined interpretation caused TCPA lawsuits and settlement figures to skyrocket.

After ACA Int’l, technology needs to actually generate telephone numbers to qualify as an ATDS. In this post-ACA landscape, at least eight district courts have held that the FCC’s expansive rulings on the TCPA have been vacated:

  • Wilfredo Gonzalez v. Ocwen Loan Servicing, Civ. Action No. 1:17-CV-01600-LMM, 2018 WL 3134439 (M.D. Fla. Sept. 5, 2018) (Predictive dialers are not subject to the TCPA unless they randomly or sequentially generate numbers to be dialed.);
  • Wash. v. Six Continents Hotels, No. 2:16-CV-03719-ODW-JEM, 2018 U.S. Dist. LEXIS 145639 (C.D. Cal. Aug. 24, 2018) (ACA Int’l is binding across the nation. However, the Wash Court found that “ACA did not set aside a[n] [FCC] ruling, but rather the FCC’s treatment of the definition of an autodialer.” This interpretation of the ACA opinion acknowledges the D.C. Circuit’s intention to set aside all competing definitions of an ATDS and explicitly rejects the FCC’s previous definitions of an ATDS.);
  • Keyes v. Ocwen Loan Servicing, No. 17-cv-11492, 2018 U.S. Dist. LEXIS 138445, at *15(E.D. Mich. Aug. 16, 2018) (D.C. Circuit “set aside the FCC’s declarations regarding the capacity and functions of an ATDS.”);
  • Gary v. TrueBlue, Inc., No. 17-cv-10544, 2018 WL 3647046 (E.D. Mich. Aug. 1, 2018) (Dialing from a list of numbers does not qualify as the use of an ATDS.);
  • Pinkus v. Sirius XM Radio, 16 C 10858, 2018 U.S. Dist. LEXIS 125043 (N.D. Ill. July 26, 2018) (“ACA Int’l necessarily invalidated the FCC Declaratory Ruling insofar as they provide, that a predictive dialer qualifies as an ATDS even if it does not have the capacity to generate phone numbers randomly or sequentially and then to dial them.”);
  • Sessions v. Barclays Bank Delaware, Civ. Action No. 1:17-CV-01600-LMM, 2018 WL 3134439 (N.D. GA June 25, 2018) (ACA Int’l overruled FCC’s predictive dialer rulings, but the issue of statutory functionality is reserved at the pleadings stage.);
  • Herrick v. GoDaddy.com LLC, No. CV-16-00254-PHX-DJH, 2018 WL 2229131 (D. Ariz. May 14, 2018) (FCC’s rulings holding that predictive dialers are an ATDS are no longer binding following ACA Int’l and a summary judgment granted for the defendant in a click to dial case).; and
  • Marshall v. CBE Group, Inc., No. 2:16-cv-02046-GMN, 2018 WL 1567852 (D. Nv. March 30, 2018) (FCC predictive dialer rulings overturned by ACA Int’l and summary judgment granted for the defendants in a click to dial case).

This progressive case law is changing the TCPA landscape and signals positive news for the defense bar.

Following this trend, on September 5, 2018, the Middle District of Florida held in Ocwen that predictive dialers are not subject to the TCPA unless they randomly or sequentially generate

numbers to be dialed. Specifically, the Court required a “present” capacity to generate and dial such numbers. Wilfredo Gonzalez v. Ocwen Loan Servicing, Civ. Action No. 1:17-CV-01600-LMM, 2018 WL 3134439 *12-13 (M.D. Fla. Sept. 5, 2018). In reading its ruling, the Ocwen Court noted that when challenges of an FCC order from multiple jurisdictions are combined in one circuit, the circuit court’s opinion is binding in all circuits. Therefore, “this Court is bound by the D.C. Circuit’s [ACA Int’l] opinion, as are all district courts.”

The cases discussed above will help defendants dismiss TCPA claims more easily. As the growing body of defendant friendly case law demonstrates, ACA Int’l continues to substantially alter the legal landscape. Plaintiffs are increasingly being forced to show that dialers can randomly or sequentially generate numbers to have a viable TCPA claim.