A judge in the United States District Court for the Southern District of Florida has preliminarily approved a $2.5 million settlement of a putative class action against Mid-Atlantic Sports Network, Hyundai, and Mercedes-Benz. Gonzalez v. TCR Sports Broadcasting Holding, LLP, et al., 1:18-cv-20048-DPG (S.D. Fla. Feb. 14, 2019) (Dkt. No. 79). The putative class representative’s unopposed motion seeking the court’s preliminary approval of the settlement described it as the result of “hard fought” settlement negotiations to resolve the “highly contentious” litigation, including two mediation conferences over two weeks. (Dkt. No. 76 at 2.)
The complaint, which was filed in Florida state court before defendants sought removal to federal court, alleged the defendants violated § 277 of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”), by using an automatic telephone dialing system (“ATDS”) to text unsolicited sales promotions without the express written consent of the recipients. Before settling, the parties briefed whether the court should stay the action to allow the Federal Communications Commission (“FCC”) to first clarify the definition of an ATDS.
An ATDS is defined as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). In 2015, the FCC expanded the scope of this definition to include equipment that has the “potential” or “future capacity” to dial in an automated manner. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, CG Docket No. 02- 278, 30 FCC Rcd. 7961, 7971-72, 7974-76, 8089 ¶¶ 10, 16, 19 (2015). After courts rejected this interpretation, ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the FCC issued a public notice seeking comments for a revised definition of ATDS, specifically: “[i]f equipment cannot itself dial random or sequential numbers, can that equipment be an automatic telephone dialing system?” Consumer and Governmental Affairs Bureau Seeks Comment on Interpretation of The Telephone Consumer Protection Act in Light of the D.C. Circuit’s ACA International Decision, CG Docket No. 18-152, CG Docket No. 02-278, DA 18-493 (May 14, 2018). The public comment period closed on June 28, 2018. Id.
The putative class representative opposed the defendants’ motion to stay the action, arguing, in part, that the FCC may take significantly more time to recast its definition of an ATDS. The parties settled before the court decided the stay motion, and the FCC has not yet released its response to public comments.