In Whitehead v. Ocwen Loan Servicing, LLC, Case No. 2:18-CV-470-FTM-99MRM, 2018 WL 5279155 (M.D. Fla. October 24, 2018), the District Court found that a TCPA Plaintiff pleaded enough regarding an ATDS after ACA International.

Not surprisingly, since the D.C. Circuit’s opinion in ACA Int’l, courts have reached differing conclusions as to the decision’s impact on FCC Orders issued prior to 2015, and each of the parties have cited cases in support of their positions. Compare Doc. 13, pp. 8-9 (citing at least seven cases generally finding that ACA Int’l voided the FCC’s interpretation of an ATDS originally adopted in the 2003 Order and reaffirmed in subsequent orders) with Doc. 20, Exhibits A-N (citing at least thirteen cases generally finding that predictive dialers remain an ATDS pursuant to the FCC’s 2003 and 2008 Orders). So far, the Eleventh Circuit has not weighed in on the application of ACA Int’l. While it is easy to get caught up in the minutia, what Defendant asks the Court to do at the Motion to Dismiss stage – which tests the sufficiency of the pleadings – is to determine whether ACA Int’l vacated all of the FCC’s interpretations with respect to what constitutes an ATDS after 1992 and that the 1992 Order governs. However, such a determination is not required at this stage because Plaintiff’s allegations plausibly allege a violation of the TCPA based on its statutory definition, which was not challenged in ACA Int’l. Since the statutory definition of an ATDS (as opposed to the FCC’s interpretation of an ATDS) was not questioned in ACA Int’l, the FCC’s guidance does not alter the statutory definition of an ATDS. . . .For purposes of the Motion to Dismiss, the Court can determine whether Plaintiff has plausibly alleged Ocwen contacted them using telephone dialing equipment that falls within the TCPA’s statutory definition of an ATDS by applying the statute and Eleventh Circuit precedent in this regard. . . There is no way for Plaintiff to know the technological capabilities of the device(s) used to place the calls at issue in this case short of Plaintiff learning that information in discovery. Whitehead’s allegations – hearing a pause when she answered before hearing a voice plus her allegations that Ocwen used an ATDS – satisfy her burden at this stage in the proceedings. See France v. Ditech Financial, LLC, 8:17-cv-3038-T-24MAP, 2018 WL 1695405, *7-8 (M.D. Fla. Apr. 6, 2018). Notably, the vast majority of the twenty cases cited by the parties in their briefs were decided at the summary judgment stage, meaning that the courts in those cases had the benefit of evidence demonstrating what type of device(s) were used to call plaintiff and then applying the proper legal standard under the TCPA. Here, the Court does not yet have that benefit. Discovery of the nature of Ocwen’s calling system and Ocwen’s contacts with Plaintiff is required before any definitive legal standard under the TCPA can be applied to Ocwen’s conduct alleged in this case.