In Gonzalez v. Ocwen Loan Servicing, LLC., 2018 WL 4217065, at *5–6 (M.D.Fla., 2018), Judge Moody described the effect of ACA Int’l on what constitutes an ATDS.
In sum, ACA Int’l vacated the FCC’s 2015 Order in two ways relevant here: it vacated the FCC’s interpretation of what it means for a device to have the capacity to function as an ATDS, and vacated the FCC’s interpretation that an autodialer was required and not required to be able to generate random or sequential telephone numbers and dial them. But the parties differ as to what those rulings mean when it comes to the autodialer definition this Court should apply. As noted above, Ocwen argues ACA Int’l not only vacated the FCC’s 2015 Order, but also the 2003 and 2008 Orders. That is because the FCC’s interpretation of what devices are defined as ATDSs in its 2015 Order, which the D.C. Circuit concluded were impermissible, reaffirmed the FCC’s interpretation first espoused in its 2003 Order and latter reaffirmed in its 2008 Order. See Sessions v. Barclays Bank Delaware, 317 F.Supp.3d 1208 (N.D. Ga. 2018); Gary v. TrueBlue, Inc., No. 17-cv-10544, 2018 WL 3647046 (E.D. Mich. Aug. 1, 2018); Pinkus v. Sirius XM Radio, Inc., No. 16 C 10858, 2018 WL 3586186 (N.D. Ill. Jul. 26, 2018); Herrick v. GoDaddy.com LLC, 312 F.Supp.3d 792 (D. Ariz. 2018); and Marshall v. CBE Grp., Inc., 2018 WL 1567852 (D. Nev. Mar. 30, 2018). But Gonzalez argues that ACA Int’l only affected the FCC’s 2015 Order—not the 2003, 2008, or 2012 Orders because the D.C. Circuit did not explicitly vacate any other FCC orders. See Reyes v. BCA Fin. Servs., Inc., 312 F.Supp.3d 1308 (S.D. Fla. May 14, 2018); Swaney v. Regions Bank, No. 2:13-cv00544-JHE, 2018 WL 2316452 (N.D. Ala. May 22, 2018); Maddox v. CBE Grp., Inc., No. 1:17-CV-1909-SCJ, 2018 WL 2327037 (N.D. Ga. May 22, 2018); McMillion v. Rash Curtis & Assocs., No. 16-CV-03396-YGR, 2018 WL 3023449 (N.D. Cal. June 18, 2018); Ammons v. Ally Fin., Inc., No. 3:17-CV-00505, 2018 WL 3134619 (M.D. Tenn. June 27, 2018); O’Shea v. Am. Solar Sol., Inc., No. 3:14-CV-00894-L-RBB, 2018 WL 3217735 (S.D. Cal. July 2, 2018); Pieterson v. Wells Fargo Bank, N.A., No. 17-CV-02306-EDL, 2018 WL 3241069 (N.D. Cal. July 2, 2018); Somogyi v. Freedom Mortg. Corp., No. CV 17-6546 (JBS/JS), 2018 WL 3656158 (D.N.J. Aug. 2, 2018); and Abante Rooter & Plumbing, Inc. v. Alarm.com Inc., No. 15-CV-06314-YGR, 2018 WL 3219398 (N.D. Cal. July 2, 2018). This Court agrees with Ocwen and the cases on which it relies for two primary reasons. First, this Court is bound by the D.C. Circuit’s opinion, as are all district courts. That is because when challenges of an FCC order from multiple jurisdictions are combined in one circuit, that circuit court’s opinion is binding in all circuits. Sessions, 317 F. Supp. 3d 1208 (citing Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 467 (6th Cir. 2017); Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1057 (9th Cir. 2008)). Such a procedure “promotes judicial efficiency, vests an appellate panel rather than a single district judge with the power of agency review, and allows uniform[,] nationwide interpretation of the federal statute by the centralized expert agency created by Congress to enforce the TCPA.” Pinkus, 2018 WL 3586186, at *4 (citing CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 450 (7th Cir. 2010)). So this Court is bound by the D.C. Circuit’s ruling that the FCC’s interpretation of what devices constitute ATDSs is impermissible. Second, the D.C. Circuit tackled head on the issue of whether it could review the FCC’s interpretation of what devices should be considered ATDSs—regardless of when the FCC first applied the definition. The D.C. Circuit rejected the FCC’s argument that the court could not review the interpretation what devices constitute ATDSs since neither its 2003 nor 2008 Orders establishing the definition were appealed. ACA Int’l, 885 F.3d at 701. Instead, the D.C. Circuit held it had jurisdiction to review the definition reaffirmed in the FCC’s 2015 Order and vacated it. Id. In doing so, the D.C. Circuit necessarily vacated the definition in the prior FCC Orders that the 2015 Order merely reaffirmed. To conclude otherwise would mean that courts are required to apply the definition of an ATDS—from the 2003 and 2008 Orders—that the D.C. Circuit vacated when reviewing the 2015 Order. That said, the question as to what devices are ATDSs is still unresolved because ACA Int’l did not rule as to the correct interpretation of the statute; rather, it only vacated the FCC’s impermissible interpretation. Pinkus, No. 16 C 10858, 2018 WL 3586186, at *7. So this Court must answer that question by returning to the statutory definition of an ATDS found in § 227(a)(1): an ATDS is a device which has the capacity to (1) store or produce telephone numbers to be called, using a random or sequential number generator; and (2) dial such numbers. Having considered the statute, this Court concludes that the definition of an ATDS would not include a predictive dialer that lacks the capacity to generate random or sequential telephone numbers and dial them; but it would include a predictive dialer that has that capacity. And because the D.C. Circuit determined that interpreting capacity to mean a device with a “future possibility” of having those functions is too expansive, this Court considers a device to have the capacity to generate random or sequential telephone numbers only if the device has the “present ability” to do so. ACA Int’l, 885 F.3d at 695– 97. Having made that determination, the Court now must apply that definition to determine whether Gonzalez pleaded sufficient facts to state a claim under the TCPA.
But, the Court held that even if the defendant did not use an ATDS, the Plaintiff still stated a claim, in part, because the Plaintiff alleged that an artificial voice was used.
Contrary to Ocwen’s argument, the Court concludes any allegation that a caller used a device that could have the present ability to generate random or sequential telephone numbers—including predictive dialers—is sufficient to satisfy a plaintiff’s pleading requirements in TCPA cases. After all, there is no way for a plaintiff to know the technological capabilities of the device used to place a call short of a caller admitting the fact presuit or the plaintiff learning that information during discovery. So Gonzalez’s allegations—hearing a pause when he answered before hearing a voice plus his allegation that that Ocwen used an ATDS—satisfy his burden at this stage of the proceedings. Sessions, 317 F. Supp. 3d 1208 (concluding the plaintiff pleaded a TCPA claim by alleging “she heard a ‘dead air’ silence of five or more seconds before a human representative appeared on the line, which Plaintiff states is indicative of the use of an ATDS.”). But even if the Court concluded otherwise, dismissal would not be warranted in this case. In addition to claiming that Ocwen used an ATDS, Gonzalez also alleges that Ocwen used an artificial or prerecorded voice while calling him. As this Court has previously explained, “From the plain text of [47 U.S.C. § 227(b)(1)(A)], each of these violations is independently actionable; a plaintiff may recover damages for calls made “using any automatic telephone dialing system or an artificial or prerecorded voice.” Therefore, Plaintiff’s claim regarding the use of an artificial or prerecorded voice is appropriately before the court, regardless of the FCC’s decision with respect to the definition of an ATDS.” Ayers v. Verizon Commc’ns, Inc., No. 8:14-CV-626-T-30MAP, 2014 WL 2574543, at *1 (M.D. Fla. June 9, 2014) (internal citation omitted) (emphasis in original). So even if Gonzalez had failed to state a claim regarding Ocwen’s use of an ATDS, his TCPA claim would proceed based on his allegation that Ocwen used an artificial or prerecorded voice.