In Maddox v. CBE Group, Inc., Case No. 1:17-CV-1909-SCJ, 2018 WL 2327037 (N.D. Ga. May 22, 2018), Judge Jones followed the ACA Int’l decision with respect to the issue of what constitutes an ATDS under the TCPA.
Ordinarily, statutory interpretation “begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S. Ct. 1587, 1593, 158 L. Ed. 2d 338 (2004). Looking to the language of § 227(a)(1), it seems the essential feature of an ATDS is that it uses “a random or sequential number generator.” 47 U.S.C. § 227(a)(1). Quite obviously, Defendant’s system did not generate Plaintiff’s 10-digit telephone number using a truly random or sequential number generator. Instead, Defendant’s system draws from a set list of actual phone numbers, which is how Defendant knew Plaintiff’s phone number was associated with her Comcast debt. But the Federal Communications Commission (“FCC”) has taken a rather different approach to interpreting § 227(a)(1). Making short-shrift of the requirement that an ATDS use “a random or sequential number generator,” it held that a system can qualify as an ATDS even if it does not “create and dial 10-digit telephone numbers arbitrarily” but rather “relies on a given set of [phone] numbers.” In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14092 (2003). This ruling has the force of law, and the Court is without authority to determine its validity. Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1119—21 (11th Cir. 2014). But even under the FCC’s broad, 2003 interpretation of § 227(a)(1), a system must still have “the capacity to dial numbers without human intervention” to qualify as an ATDS. 18 F.C.C. Rcd. at 14092 (emphasis in original). In 2015, the FCC took the position that this interpretation meant a system “need only have the ‘capacity’ to dial random and sequential numbers, rather than the ‘present ability’ to do so.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7974 (2015). This 2015 ruling was challenged in various circuits and, pursuant to 28 U.S.C. § 2112(a)(3), the Panel on Multidistrict litigation consolidated the challenges into a single case—ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018). The ACA Int’l Court held that the FCC’s 2015 Order made “the [TCPA’s] restrictions on autodialer calls assume an eye-popping sweep.” Id. at 697. Because “any smartphone, with the addition of software, can gain the statutorily enumerated features of an autodialer,” the FCC’s focus on the potential, future abilities of a device meant “that all smartphones … meet the statutory definition of an autodialer.” Id. at 696—97. The ACA Int’l Court rejected this interpretation of “capacity” as “an unreasonably, and impermissibly, expansive one.” Id. at 700.
While ACA Int’l was decided by the D.C. Circuit, the Court is persuaded that the decision is binding in this Circuit as well. See Reyes v. BCA Fin. Servs., Inc., ___ F. Supp. 3d ___, 2018 WL 2220417, at *11 (S.D. Fla. May 14, 2018) (recognizing “that ACA International is binding authority, even though it comes from the D.C. Circuit”). Although the issue has not been directly addressed by the Eleventh Circuit, other circuits have held that a decision in a case consolidated under § 2112(a) is binding on courts across the country. Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 467 (6th Cir. 2017), as corrected on denial of reh’g en banc (Sept. 1, 2017), cert. denied, 138 S. Ct. 1284 (2018); Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1057 (9th Cir. 2008). Still other circuits have suggested the same. See GTE S., Inc. v. Morrison, 199 F.3d 733, 743 (4th Cir. 1999) (holding that once cases are consolidated pursuant to § 2112(a), the chosen circuit becomes “the sole forum for addressing challenges to the validity of the FCC’s rules”); Westinghouse Elec. Corp. v. U.S. Nuclear Regulatory Comm’n, 598 F.2d 759, 767 (3d Cir. 1979) (noting that courts rely on § 2112(a) to “prevent unseemly conflicts that could result should sister circuits each take the initiative and issue conflicting decisions”) (quoting Abourezk v. F. P. C., 513 F.2d 504, 505 (D.C. Cir. 1975)). Given the ACA Int’l decision, the Court relies on the FCC’s 2003 interpretation of § 227(a)(1) to determine if Defendant’s system qualifies as an ATDS. That interpretation focuses on whether a system can “dial numbers without human intervention.” See 18 F.C.C. Rcd. at 14092. Here, the undisputed fact is that CBE used a MCA, which requires human intervention to initiate a call. Doc. No. [15-6], p. 7, ¶¶24—29. Plaintiff suggests that Defendant’s system still qualifies as an ATDS unless agents “manually dial each 10-digit telephone number one digit at a time to initiate a call.” Doc. No. , p. 7. However, this contention has no basis in law. The FCC’s interpretation requires “human intervention,” not that agents dial all ten digits of a phone number manually. See 18 F.C.C. Rcd. at 14092. Under Plaintiff’s sweeping interpretation, any phone with a speed-dial feature—i.e. nearly all phones—would qualify as an ATDS. This is the very kind of “unreasonably, and impermissibly, expansive” interpretation that led the ACA Int’l Court to overturn the FCC’s 2015 Order. See 885 F.3d at 696— 700. The focus is on whether the system can automatically dial a phone number, not whether the system makes it easier for a person to dial the number. See 18 F.C.C. Rcd. at 14092. Defendant’s system requires human intervention. Doc. No. [15-6], p. 7, ¶¶24—29. Additionally, the system does not use any kind of predictive or statistical algorithm to engage in predictive dialing or minimize waiting times. Id. p. 9, ¶¶36—41. For these reasons, it does not qualify as an ATDS, and Defendant is entitled to summary judgment on Plaintiff’s TCPA claim. See Strauss v. CBE Grp., Inc., 173 F. Supp. 3d 1302, 1310–11 (S.D. Fla. 2016); see also Marshall v. CBE Grp., Inc., 2018 WL 1567852, at *5—8 (D. Nev. Mar. 30, 2018).