A district court in Wisconsin amplified the uncertainty facing TCPA litigants in the Seventh Circuit by holding that a predictive dialer constitutes an automatic telephone dialing system (“ATDS”), even if the device does not place random or sequentially dialed numbers.  In denying the defendant’s motion to dismiss, the court applied the ATDS definition found in the 2003 FCC Order.

The case is Maes v. Charter Communication, No. 18-cv-124 (W.D. Wis. Oct. 30, 2018).  A copy of the opinion can be found here.

Plaintiff Mitchell Maes alleged that Charter Communication repeatedly called his cell phone using a predictive dialer.  Charter moved to dismiss on the grounds that Maes had not sufficiently alleged it had used an ATDS.  The question hinged on the definition of an ATDS, and the court teed up the issue as a choice between the definition found in the statute or the broader definitions found in the FCC’s Orders.

The definition of an ATDS has been thrown into flux following ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the decision by the D.C. Circuit striking down the expansive definition found in the 2015 FCC Order. Much of the uncertainty comes from whether ACA International left intact earlier FCC Orders, specifically the 2003 FCC Order, declaring that a predictive dialer is considered an ATDS.  Many courts, including the Ninth Circuit in Marks v. Crunch San Diego, LLC, have found that ACA International wiped the slate clean by invalidating the definitions found in all FCC Orders rather than just the 2015 Order.  Others, including published opinions from the Second Circuit (King v. Time Warner Cable, Inc., 894 F.3d 473) and Third Circuit (Dominguez v. Yahoo, Inc., 894 F.3d 116), have implicitly adopted this position by looking to the statute, rather than the pre-2015 Orders, for the definition of an ATDS.  Conversely, some courts have found the D.C. Circuit only invalidated the 2015 Order, leaving them to apply the definitions found in prior Orders.

The Maes court took the last approach, determining it was bound by the 2003 FCC Order.  The court noted the significant disagreements among the courts on the question and disregarded the logic embraced by the Second, Third and Ninth Circuits in King, Dominguez, and Marks that found the 2003 FCC Order had been invalidated.  The court then concluded that the ACA International decision only invalidated the rules in the 2015 FCC Order that contradicted the 2003 FCC Order.  The court also determined that although the D.C. Circuit had explicitly invoked its jurisdiction to review the earlier FCC Orders, it did not actually “review” those Orders but instead merely “discussed” them.

Because the 2003 FCC Order remained intact, the court found that it had no authority to impose its own interpretation of the statute.  Therefore, as a predictive dialer, Charter’s technology constituted an ATDS.

 The court’s reasoning directly contradicts a published post-ACA International decision from a district court within the same circuit, Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927 (N.D. Ill. 2018).  In Pinkus, the court found that ACA International had overruled the earlier FCC Orders and determined that a predictive dialer was not an ATDS.  The division among courts within the Seventh Circuit is indicative of the schism that has developed across the country.  

Fortunately, it appears that the FCC is poised to resolve this uncertainty by narrowing the definition of an ATDS to the statutory definition – equipment that dials numbers randomly or sequentially.  Most expect such guidance from the FCC in the very near future.  Unlike in Maes, some courts have recognized that the prudent course of action is to wait for the FCC to resolve the question rather than forging ahead into the great divide.  TCPA defendants who use equipment that likely will not qualify as an ATDS under the FCC’s forthcoming guidance should encourage courts to take this sound approach.