Technology is present in nearly everything we do and not only in the form of a smartphone. Now, when people brush their teeth, turn on the car, or tune an instrument, there’s likely some form of digital technology at work. With all of these activities, it can be unclear when the user is manually performing the action versus when it’s become automated. Courts have struggled with this same issue while applying the Telephone Consumer Protection Act (TCPA) after the D.C. Circuit set aside the FCC’s interpretation of an automatic telephone dialing system (ATDS) in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). As we’ve outlined in previous blogs, ACA International clearly invalidated the ATDS standard from the FCC’s 2015 TCPA Order, but, since that decision, district courts have grappled with the validity of the FCC’s 2003 and 2008 predictive dialer rulings, which concluded that predictive dialers that dial from set lists of specific telephone numbers are autodialers.
While several courts have ruled on this issue, there still isn’t a consensus on the proper approach. Last week, however, the Northern District of Illinois issued a well-reasoned and detailed decision that may help guide that debate – Pinkus v. Sirius XM Radio, Inc., No. 1:16-cv-10858 (N.D. Ill. July 26, 2018). The court in Pinkus had to wrestle with the exact set of circumstances that ACA International has thrown into confusion: namely, whether predictive dialing technology qualifies as an ATDS if it does not randomly or sequentially generate the phone numbers to be called. The 2015 FCC Order that was struck down in ACA International, as well as previous FCC orders, included this type of technology under the definition of ATDS.
In Pinkus, the Northern District of Illinois confirmed that ACA International invalidated not only the FCC’s 2015 Order but also the FCC’s 2003 and 2008 orders. The basis of this ruling was that the previous orders applied the same conflicted definition of ATDS as did the 2015 Order, which adopted inherently conflicting conclusions: On the one hand, only predictive dialers that randomly or sequentially generate phone numbers are ATDS, while, on the other, all predictive dialers are ATDS. The Pinkus court, then, went one step further and found that predictive dialers that call from a set list of numbers are not ATDS under the TCPA. Consistent with the plain words of the statute and the legislative history underlying the TCPA, the court limited the definition of ATDS to a dialer having the capacity to randomly or sequentially generate phone numbers.
This addition to the current split among district courts is notable because of the opinion’s analysis on the issue, which is more detailed than in many other recent cases. Specifically, it considers indepth the ability of the D.C. Circuit to rule on the earlier FCC orders and whether it intended to invalidate them; having found that it did, the court then conducted a thorough analysis of the TCPA’s statutory construction in arriving at the conclusion that ATDS does not include all predictive dialers. While new agency or even Congressional action could reset the TCPA landscape, the analysis in this case could be persuasive to other courts ruling on this issue. That result would be welcomed by industry, which would retain the ability to use some predictive dialing. We’ll continue to update you on new notable TCPA developments, and a list of recent TCPA actions can be found here.