The decision in ACA Int’l v. FCC, 885 F.3d 687, 701 (D.C. Cir. 2018), invalidated the Federal Communications Commission’s 2015 Declaratory Ruling with regard to what qualifies as an automatic telephone dialing system, or “ATDS,” under the Telephone Consumer Protection Act. Based on this, the Third Circuit, in Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018), held that it would interpret the definition of an ATDS as it had prior to the 2015 Declaratory Ruling. Accordingly, the Dominguez decision focused on whether a particular system had the present capacity to function as an autodialer. This left open the question of whether a predictive dialer – that is, equipment that dials numbers from a set database and assists in predicting when an agent will be available to take calls – qualifies as an ATDS under the statute. Recently, two district courts within the Third Circuit have considered this question and have reached opposite conclusions.
In Wilson v. Quest Diagnostics Inc., No. 2:18-11960, 2018 U.S. Dist. LEXIS 212023 (D.N.J. Dec. 10, 2018), the District of New Jersey determined that, although the FCC’s 2015 Declaratory Ruling had been set aside in ACA International, the FCC’s previous rulings remained in effect. It therefore held that “a predictive dialer qualifies as an ATDS so long as it has ‘the [present] capacity to dial numbers without human intervention.’” Id. at *7, quoting In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14092 (2003). Because the plaintiff alleged facts adequate to show that she received calls placed with a predictive dialer, the Court denied Quest’s motion to dismiss her TCPA claim.
In contrast, in a decision issued just four days later, the Eastern District of Pennsylvania reached the opposite conclusion. In Richardson v. Verde Energy USA, Inc., No. 15-63252018 U.S. Dist. LEXIS 212558, at *17 (E.D. Pa. Dec. 14, 2018), the Court determined that, in addition to overturning the 2015 Declaratory Ruling, ACA International invalidated the FCC’s 2003 and 2008 Orders by implication. Based on the finding that these rulings are no longer in effect, it held that “a predictive dialing device that merely dials numbers from a stored list of numbers – rather than having generated those numbers either randomly or sequentially – is not an ATDS.” Id. at *22. Because there was no evidence to show that the predictive dialer at issue could randomly or sequentially generate numbers to be called, the Court granted summary judgment in favor of the defendant to the extent the claims were based on the alleged use of an ATDS.
The different approaches adopted by the district courts will likely lead to further clarification from the Third Circuit. Accordingly, Troutman Sanders will continue to keep a close eye on the situation and report as interpretations of the TCPA continue to evolve.