However, on the same day that Herrick was decided, the United States District Court for the Southern District of Florida reached the exact opposite conclusion in Reyes v. BCA Fin. Servs., Inc., 2018 WL 2220417 (S.D. Fla. May 14, 2018). In that case, the court found that the ACA Int’l decision did away with certain portions of the 2015 FCC order, but had no impact on the 2003 or 2008 orders. The court stated “the ACA International case has given the Court considerable pause. But the Court finds that the prior FCC Orders are still binding.”
Then just last week, the United States District Court for the Northern District of Alabama in Swaney v. Regions Bank, 2018 WL 2316452 (N.D. Ala. May 22, 2018), adopted a report and recommendation finding that the FCC’s 2003 predictive dialer order “still stands.” Along similar lines as the Reyes decision, the court determined that ACA Int’l discarded “certain portions” of the 2015 FCC Order, but it did not discard the portion of the order reaffirming the 2003 FCC determination that “while some predictive dialers cannot be programmed to generate random or sequential phone numbers, they still satisfy the statutory definition of an ATDS.”
Clearly the ACA Int’l decision did not have the clarifying effect so many were hoping for, and it now appears that the debate over what constitutes an ATDS is as murky as ever. In an effort to clarify things, the FCC recently issued a notice seeking comments about what constitutes an ATDS among other things. Comments are due by June 13, 2018 and reply comments are due by June 28, 2018. To avoid unnecessarily creating further confusion, it appears the best course for courts now is to stay cases and wait for the FCC to complete its rulemaking process.
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