Ever since the D.C. Circuit struck down the FCC’s overbroad rule defining “auto-dialers” under the Telephone Consumer Protection Act, district courts have debated the scope of the D.C. Circuit’s ruling: Did it effectively strike down earlier FCC pronouncements on what qualifies as an auto-dialer? In a carefully reasoned opinion, a district court judge in Chicago held last week that it did.
The plaintiff in the case, Pinkus v. Sirius XM Radio, Inc., No. 16 C 10858 (N.D. Ill.), alleged that the defendant called his cell phone more than a hundred times using an auto-dialer—in the parlance of the statute, an “automatic telephone dialing system” or “ATDS.” Plaintiff alleged that the calls were placed with “predictive dialer” technology, meaning “‘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.’”
The FCC had said in orders in 2003 and 2008 that the TCPA’s definition of auto-dialer was broad enough to cover predictive dialers. It also issued a ruling in 2015 reaffirming those pronouncements, but that 2015 ruling was struck down in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018).
In Pinkus, the district court (Feinerman, J.—full disclosure, Judge Feinerman was a partner at Sidley before being appointed to the bench) held that “ACA International necessarily invalidated the 2003 Order and 2008 Declaratory Ruling insofar as they provide, as did the 2015 Declaratory Ruling, that a predictive dialer qualifies as an ATDS even if it does not have the capacity to generate phone numbers randomly or sequentially and then to dial them.”
Unconstrained by the underbrush of the FCC’s earlier rulings, the court went on to interpret the statutory definition of auto-dialers. It is not enough, the court held, to allege that the device “calls telephone numbers from a stored list of numbers—rather than having generated those numbers either randomly or sequentially.” Instead, the device must be able to generate phone numbers, “either randomly or sequentially, and then to dial those numbers.”
The result: Judgment on the pleadings was granted in favor of the defendant on the auto-dialer issue. The case remains pending because plaintiff also allegedly received pre-recorded calls, which can violate the statute even if no auto-dialer is used.