Judge Cecilia M. Altonaga of the Southern District of Florida started the New Year by granting a motion to stay a pending Telephone Consumer Protection Act case, Barnes, et al. v. CS Marketing LLC, et al.
In Barnes, the plaintiffs allege that the defendants are vicariously liable for telemarketing calls placed to them and other class members using an automatic telephone dialing system (“ATDS”) without their prior express written consent. Specifically, the plaintiffs alleged that after visiting a website in search of insurance quotes they each received a call to their cellular telephone soliciting them to purchase insurance from the defendants. The calls all shared similar circumstances, including an immediate pause when answered and a “distinct ‘clicking’ noise before the connection with a representative was made.” Plaintiffs claim the pause and clicking are indicative of a predictive dialing system.
The defendants filed a joint motion to stay pending guidance from the Federal Communications Commission regarding the definition of an ATDS and the resolution of the appeal by the Eleventh Circuit in Glasser v. Hilton Grand Vacations Co., LLC. The Glasser appeal questions whether a call initiated by a clicker agent was placed using an ATDS and violative of the TCPA.
The defendants argued that if the FCC adopts a definition of ATDS that states “equipment must (a) use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention, or (b) that predictive dialers do not meet the statutory definition of an ATDS,” then summary judgment in the defendants’ favor would be appropriate.
Based on the arguments presented, the Court found that “[t]he parties and the Court would certainly benefit from the clarification of the definition of an ATDS” and utilized its “broad discretion to stay the case.”
This decision demonstrates that long after the D.C. Circuit’s decision in ACA International and the FCC’s request for public comment on the interpretation of the definition of an ATDS, courts may entertain a stay of a TCPA case pending the clarification of the definition of an ATDS.