On October 30, 2018, in Maes v. Charter Communications, Case No. 18-cv-124-jdp, the Federal District Court for the Western District of Wisconsin denied a motion to dismiss Telephone Consumer Protection Act (TCPA) claims finding that the D.C. Circuit’s recent decision in ACA International v. FCC invalidated the FCC’s 2015 order defining “autodialer”, but did not invalidate the FCC’s 2003 order. In doing so, the Court applied the FCC’s 2003 definition that a predictive dialer is an “autodialer” under the TCPA, even if the device cannot dial random or sequentially generated numbers. Since the D.C. Circuit’s ruling in ACA International, courts have disagreed about the validity of prior FCC rulings on “autodialer.” Judge Peterson’s ruling in Maes lines up with decisions from Georgia, Alabama, Michigan and Tennessee federal courts, but is in opposition to a recent opinion out of the Federal District Court for the Northern District of Illinois. Regardless, it sets the law in the Western District regarding what constitutes an autodialer under the TCPA.

The TCPA was enacted in 1991 to address the use of the telephone to market goods and services to the home and other businesses. More specifically, Congress made it “unlawful . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone services,” “unless such call is made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227 (b)(1)(A)(iii). The TCPA defines an “automatic telephone dialing system,” i.e., an autodialer, as “equipment which has the capacity – (A) to store and produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

In 2003, the FCC interpreted the TCPA’s “autodialer” to include “equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls.” Such equipment, often referred to as a predictive dialer, will sometimes result in a moment of silence before the person is connected with a telemarketer. Twelve years later, in 2015, the FCC reconsidered the definition of autodialer and issued a subsequent order pronouncing that to qualify as an “autodialer,” equipment must have the capacity to generate and dial random or sequential numbers. At the same time, in the 2015 order the FCC also reaffirmed its prior rulings on predictive dialers, including the 2003 order, which held that a predictive dialer was an autodialer even if it could not be programmed to generate random or sequential numbers. According to the Maes’ court, it was this inherent contradiction that supported the D.C. Circuit’s invalidation of the FCC’s 2015 order.

The court in Maes went on to find that the D.C. Circuit left intact the FCC’s 2003 ruling which was therefore still applicable. Accordingly, the district court found that it was “bound by the FCC’s 2003 ruling that a predictive dialer is an autodialer, even if the device does not dial random or sequentially generated numbers.” Applying this definition to the facts alleged in Maes, the district court found plaintiff’s allegations that he had heard a period of silence before he was connected with a representative, i.e., the “dead air after answering,” was sufficient to plausibly allege use of an autodialer. Thus, the defendant’s motion to dismiss was denied.

The Maes ruling sets the Western District of Wisconsin’s place on the split among federal district courts regarding the effect of ACA International. Until the FCC issues a new order clarifying “autodialer” or a definitive ruling from a federal court of appeals, forum selection will continue to have an impact on whether your equipment constitutes an autodialer.