In another blow to TCPA Plaintiffs hoping to make use of the FCC’s 2003 and 2008 Predictive Dialer rulings after ACA Int’l, a federal district court in the Northern District of Illinois held last week that those rulings were categorically set aside. The decision in Pinkus v. Sirius Xm Radio, 16 C 10858, 2018 U.S. Dist. LEXIS 125043 (N.D. Ill. July 26, 2018) represents the latest entry in a growing list of cases finding that the TCPA no longer covers dialers that call from lists, but only those that randomly or sequentially generate numbers to be called. And Pinkus is different in that the Court clearly and thoroughly analyzes all pertinent issues and reaches a stark conclusion–TCPA complaints alleging the use of a predictive dialer do not survive the pleadings stage.
Indeed, the conclusion in Pinkus on the crucial issue of whether the predictive dialer rulings survived ACA Int’l could not be more clear:
ACA International invalidated not only the 2015 Declaratory Ruling’s interpretation of the statutory term ATDS, but also the 2008 Declaratory Ruling’s and 2003 Order’s interpretation of that term
Pinkus at *10
And rather remarkably the Court reached that conclusion after acknowledging that it was in the minority position on the issue:
most district courts considering the question have held that ACA International vacated only the 2015 Declaratory Ruling-and therefore that courts remain bound by the FCC’s rulings in the 2003 Order and 2008 Declaratory Ruling that a predictive dialer need not have the capacity to “generate random or sequential numbers to be dialed to qualify as an ATDS.
Pinkus at *15-16
As I wrote just a few weeks back, from a numerical perspective the “rulings survive” camp do have the advantage, but the better-reasoned cases stack up in favor of a finding that ACA Int’l did away with those previous orders. Pinkus agrees.
Noting that the Court “respectfully disagree[d]” with contrary rulings, because:
ACA International’s concern that the FCC in the 2015 Declaratory Ruling “fail[ed] to satisfy the requirement of reasoned decisionmaking” due to the agency’s “lack of clarity about which functions qualify a device as an autodialer” thus applies with equal force to the 2003 Order. That same concern applies as well to the 2008 Declaratory Ruling, which simply “affirm[ed]” the understanding of ATDS articulated in the 2003 Order.
Pinkus at *18.
Boom goes the dynamite. Pinkus recognizes, therefore, that the D.C. Circuit Court of Appeal’s reasoning applies not just to the Omnibus ruling but necessarily to all other ATDS formulations undertaken by the Commission that rest on the same flawed and rejected analysis. 2003 and 2008 are just as faulty. So 2003 and 2008 are just as overruled.
In the Court’s more eloquent parlance:
It necessarily follows that ACA International invalidates not only the 2015 Declaratory Ruling’s understanding that all predictive dialers qualify as ATDSs, but also the 2003 Order and 2008 Declaratory Ruling to the extent they express the same understanding.
Although no further justification is needed, the Court goes on to provide further justification. After noting the famous language of ACA, Int’l wherein the Circuit Court of Appeal “disagreed” with the FCC’s argument that it lacked jurisdiction to reconsider the 2003 and 2008 orders, the Court articulated the only reasonable conclusion to be drawn from that assessment:
In rejecting the FCC’s threshold argument that this issue was off limits because it had been resolved in the 2003 Order and 2008 Declaratory Ruling, the D.C. Circuit necessarily determined that the 2015 Declaratory Ruling was inextricably intertwined with the 2003 Order and the 2008 Declaratory Ruling insofar as they, too, addressed the capacities a predictive dialer must have to qualify as an ATDS.
Pinkus at *20-21
Game. Set. Match.
Yet somehow the ruling gets even better. Next the Court addresses whether predictive dialers meet the statutory definition of an ATDS. It concludes–resoundingly–that the answer is “no.”
To get there, the Court specifically rejects the Plaintiff’s “all-dialers-that-call-from-a-list-are-an-ATDS-because-the-statute-mentions-the-capacity-to-store-numbers argument” noting that such a reading of the statute is inconsistent with its plain language. Pinkus also supplies a brilliant grammar lesson to explain why the TCPA’s definition of ATDS necessarily requires the use of a random or sequential number generator to be utilized, even when numbers are being “stored” or dialed from a list. It concludes:
Because the phrase “using a random or sequential number generator” refers to the kinds of “telephone numbers to be called” that an ATDS must have the capacity to store or produce, it follows that that phrase is best understood to describe the process by which those numbers are generated in the first place.
Having identified random or sequential number generation as the “defining characteristic” of an ATDS the Court goes on to dismiss the Complaint–alleging predictive dialer usage–because the functionality to dial numbers from a list is simply insufficient to state a claim under the TCPA.
All in all, Pinkus is a lengthy and well-reasoned decision that is sure to find plenty of followers in a rudderless TCPAland searching for direction on the issue. And–not surprisingly–this case was brought to you by the same guy that delivered the big win in ACA Int’l to begin with–our guest and friend Shay Dvoretzky. Counsel, you just won the TCPA case! Again. Congrats and great work.
UPDATE: Since I have been asked a few times, this opinion was by the Hon. Gary Feinerman.
Plaintiff’s counsel was Yitzchak Zelman of Marcus & Zelman, Llc
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