Locke Lord QuickStudy: Where Do Things Stand? Courts Reach Different Conclusions About How the D.C. Circuit’s ACA Int’l Ruling Impacts Prior FCC Rulings

Locke Lord LLP
May 31, 2018
While everyone agrees that the D.C. Circuit’s decision in ACA Int’l v. FCC rejecting the FCC’s broad definition of an “automatic telephone dialing system” was a game changer for TCPA litigation, courts are struggling to understand what those changes mean and how they should be applied. Earlier this month, in Herrick v. LLC, 2018 WL 2229131 (D. Ariz. May 14, 2018), the United States District Court for the District of Arizona found that the D.C. Circuit’s ruling in ACA Int’l absolutely abolished the FCC’s earlier pronouncements regarding the definition of an automatic telephone dialing system (“ATDS”) under the TCPA. Leaving no doubt about its interpretation of the ACA Int’l ruling, the opinion specifically states that the “D.C. Circuit Court of Appeals' decision in ACA Int'l v. FCC forecloses Plaintiff's argument that the FCC's expansive interpretation of the term ‘capacity’ in its 2015 Order is binding on this Court.” It also went on to clarify that any prior holdings that relied on the 2003 or 2008 FCC orders were equally unpersuasive because “courts were bound and guided by the now-defunct FCC interpretations regarding [the predictive dialing] function. As such, the Court is also not persuaded to follow these holdings, particularly because the FCC interpretations relied upon by these courts were driven by policy considerations and not the plain language of the statute.”

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.