In Swaney v. Regions Bank, Case No. 2:12-cv-00544-JHE, 2018 WL 2316452 (N.D. Ala. May 22, 2018), Judge Proctor held that ACA Int’l only invalidated the FCC’s 2015 Order, and that a calling system that qualified as an ATDS under FCC’s 2003 Order still constituted an ATDS under the TCPA.
In ACA International, the D.C. Circuit invalidated certain portions of the 2015 FCC Order, but not the portion of the Order reaffirming the FCC’s 2003 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.” 885 F.3d at 702 (quoting the 2013 FCC Order). In its 2003 Order, the FCC concluded that the defining characteristic of an ATDS is “the capacity to dial numbers without human intervention.” 2003 FCC Order at 14092. In light of ACA International, that proposition still stands. 885 F.3d at 702. Defendant’s principal argument against summary judgment in this case is that “to be an ATDS, equipment must have the capacity to store or produce numbers using a random or sequential number generator, even if that capacity is never used.” (Doc. #118 at 4-5). But that argument cannot be squared with the continuing validity of the 2003 FCC Order. “To determine whether a dialer is a predictive dialing system, and therefore an ATDS, ‘the primary consideration…is whether human intervention is required at the point in time at which the number is dialed.’ ” Strauss v. CBE Grp., Inc., 173 F. Supp. 3d 1302, 1309 (S.D. Fla. 2016), reconsideration denied, 2016 WL 4402270 (S.D. Fla. June 8, 2016) (quoting Brown v. NRA Grp., LLC, 2015 WL 3562740, at *2 (M.D. Fla. June 5, 2015) (citation omitted)); see also Legg v. Voice Media Grp., Inc., 20 F.Supp.3d 1370, 1374 (S.D. Fla. 2014) (explaining that “defining characteristic” of ATDS is “capacity to dial numbers without human intervention”). Here, Plaintiff presented sufficient evidence to demonstrate that the system at issue has the capacity to dial numbers (i.e., send text messages) without human intervention. Therefore, the Magistrate Judge’s recommendation that Plaintiff is entitled to partial summary judgment on this issue of whether the Defendant’s system is an ATDS under the TCPA is due to be adopted.