As we have previously reported, the recent ACA International decision from the D.C. Circuit changed the face of litigation in the Telephone Consumer Protection Act (TCPA) world by striking down the Federal Communication Commission’s (FCC) 2015 automatic telephone dialing system (ATDS) guidance. As part of our continuing coverage in this area, the Manatt TCPA team has been reporting on significant developments at the FCC and on noteworthy (i.e., dispositive or class certification-related) federal district- and appellate-level decisions interpreting, applying or otherwise evaluating ACA Int’l in ways that may impact our readers.

In addition to the long-awaited Marks v. Crunch San Diego, LLC case from the Ninth Circuit, there have been six district court opinions since the last full edition of the TCPA Connect to evaluate and apply the D.C. Circuit’s seminal opinion in ACA Int’l to define an automated telephone dialing system (ATDS). There were two cases from the Ninth Circuit, three from the Eleventh Circuit and one from the Third Circuit. The case law continues to show mixed results, although the decisions in this edition of the TCPA Connect lean ever so slightly in favor of plaintiffs.

Washington v. Six Continents Hotels, Inc., No. 216CV03719ODWJEM, 2018 WL 4092024 (C.D. Cal. Aug. 24, 2018). In this action, decided prior to Marks v. Crunch San Diego LLC, the plaintiff alleged that the defendant violated the TCPA by sending numerous unsolicited text messages to his cellphone. In denying the defendant’s motion to dismiss, Judge Wright found that ACA Int’l is binding on the Central District of California court and invalidated all prior FCC rulings on the definition of an ATDS. Therefore, the court ruled that the system at issue was an ATDS because it had the present capacity to store and generate random or sequential numbers without human intervention. The court also stated that repetitive, template-based messages are indicative of an ATDS.

Meza v. Sirius XM Radio, No. 17-cv-2252-AJB-JMA, 2018 WL 4599718 (S.D. Cal. Sep. 25, 2018). In Meza, decided after Marks v. Crunch San Diego LLC, Judge Battaglia ruled that the plaintiff adequately pleaded the elements of an ATDS by alleging that the telephone dialing equipment used by defendant Sirius XM Radio had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and that the system had the capacity to dial numbers stored in a database without human intervention. The court stated that supplemental briefing on what constitutes an ATDS is better left for summary judgment, but that the plaintiff adequately pleaded the elements of an ATDS by alleging the system had the necessary capacity and that some of the calls sounded prerecorded.

Gonzalez v. Ocwen Loan Servicing, LLC, No. 5:18-cv-340-Oc-30PRL, 2018 WL 4217065 (M.D. Fl. Sep. 5, 2018). The plaintiff alleged that the defendant called his telephone from an ATDS approximately 500 times to collect alleged debt. Although Judge Moody agreed with the defendant on the scope of ACA Int’l—that it is binding and invalidated only the 2015 FCC order regarding what constitutes an ATDS—he ultimately concluded that the plaintiff sufficiently pleaded a claim under the TCPA to withstand the motion to dismiss. The plaintiff alleged that he heard a pause before a voice that sounded prerecorded left a message. The court ruled that an ATDS is a device which has the capacity to (1) store or produce telephone numbers to be called, using a random or sequential number generator, and (2) dial such numbers, and it can include a predictive dialer that has such capacity.

Ramos v. Hopele of Fort Lauderdale, LLC d/b/a Pandora @ Galleria, and Pandora Jewelry, LLC, No. 17-62100-CIV-Moreno, 2018 WL 4658428 (S.D. Fl. Sep. 20, 2018). Judge Moreno granted summary judgment for the defendant on the issue of whether the EZ texting system constituted an ATDS after ACA Int’l. In applying ACA Int’l as binding authority, the court stated that the appropriate standard for determining whether the EZ texting program was an ATDS is whether the program (1) lacks the capacity to randomly or sequentially generate phone numbers or, alternatively, (2) lacks the ability to send messages without human intervention. For example, the definition of an ATDS does not include systems that dial from an externally supplied set of numbers, such as from an Excel file. Therefore, the EZ texting program could not qualify as an ATDS because it only had the capacity to send messages to specific identified numbers that had been inputted into the system after a human created the list of phone numbers based on various criteria, including whether the number was a landline incapable of receiving text messages. The system did not have the ability to automatically send messages or generate phone numbers and therefore was not an ATDS.

Glasser v. Hilton Grand Vacations Company, LLC, No. 8:16-cv-952-JDW-AAS, 2018 WL 4565751 (M.D. Fl. Sep. 24, 2018). Judge Whittemore denied the plaintiff’s motion for class certification and granted summary judgment for the defendant on the issue of whether the defendant’s dialing system, Intelligent Mobile Connect, constituted an ATDS in the wake of ACA Int’l. The court found that ACA Int’l provided persuasive authority as to how to interpret the definition of an ATDS. According to this court, the focus is on whether the system had “the capacity to dial numbers without human intervention.” Therefore, the system must have the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers. In granting summary judgment, the court found that the element of human intervention prevented the system at issue from constituting an ATDS and that there was no evidence that the system was a predictive dialer or that the system generated numbers and then called them.

Fleming v. Associated Credit Services, Inc., No. 16-3382(KM)(MAH), 2018 WL 4562460 (D. N.J. Sep. 21, 2018). The plaintiff brought an action for violations to the TCPA against the defendant over a series of allegedly harassing phone calls regarding unpaid electric bills. Judge McNulty ruled that ACA Int’l provides persuasive authority for the District of New Jersey and that it invalidated all prior FCC orders regarding the definition of ATDS. In granting in part and denying in part the defendant’s motion for summary judgment, the court stated that the LiveVox system employed by the defendant, which uses a clicker agent to dial numbers, does not qualify as an ATDS as defined by the TCPA because it requires human intervention. Therefore, the court concluded that a clicker agent constitutes sufficient human intervention to prevent a system from qualifying as an ATDS. The court stated that the phrase “using a random or sequential number generator” applies to the manner in which the numbers make their way onto the list—not the manner in which the numbers are dialed once they are on the list.

To read the entire decision in Washington v. Six Continents Hotels, Inc., please click here.

To read the entire decision in Meza v. Sirius XM Radio, please click here.

To read the entire decision in Gonzalez v. Ocwen Loan Servicing, LLC, please click here.

To read the entire decision in Ramos v. Hopele of Fort Lauderdale, LLC d/b/a Pandora @ Galleria, and Pandora Jewelry, LLC, please click here.

To read the entire decision in Glasser v. Hilton Grand Vacations Company, LLC, please click here.

To read the entire decision in Fleming v. Associated Credit Services, Inc., please click here.

Why these cases matter: These holdings show that district courts continue to eschew a variety of opinions on the extent to which ACA Int’l exerts binding or persuasive authority on the courts, as well as the extent to which pre-2015 FCC orders were affected by the decision. Most confusing is the extent to which the opinions on the definition of an ATDS differ among the courts—even courts within the same circuit. There is a split over whether the capacity to dial numbers from an external database (such as in Glasser) rather than via a stored function (such as in Ramos) is sufficient to constitute an ATDS. Additional discrepancies concern the extent to which human intervention can prevent a program from qualifying as an ATDS.