In Sessions v. Barclays Bank Delaware, 2018 WL 3134439, at *3–5 (N.D.Ga., 2018), Judge May found that a TCPA Plaintiff had pleaded enough post-ACA Int’l.
Courts are divided on the current definition of an ATDS in the wake of ACA International. Defendant contends that all of the FCC’s rulings with regard to definitions of an ATDS were vacated and, thus, the Court can rely only on the statutory language alone. Dkt. Nos.  at 13–15;  at 3–6. Some courts have found as much. See Herrick v. GoDaddy.com LLC, No. CV-16-00254-PHX-DJH, ––– F. Supp. 3d ––––, 2018 WL 2229131, at *7 (D. Ariz. May 14, 2018) (“As a result of the D.C. Circuit’s holding on this issue, this Court will not defer to any of the FCC’s ‘pertinent pronouncements’ ….”); Marshall v. CBE Grp., Inc., No. 2:16-cv-02406-GMN-NJK, 2018 WL 1567852, at *5 (D. Nev. Mar. 30, 2018) (“In light of this ruling, the Court will not stray from the statute’s language ….” (footnote omitted) ). On the other hand, Plaintiffs have suggested by way of their supplemental authority that the FCC’s prior rulings, such as the 2003 Order, remain valid. See Dkt. No. . Some courts have agreed with this position as well. See Maddox v. CBE Grp., Inc., No. 1:17-CV-1909-SCJ, 2018 WL 2327037, at *4 (N.D. Ga. May 22, 2018) (“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.”); Reyes v. BCA Fin. Servs., Inc., No. 16-24077-CIV-GOODMAN––– F. Supp. 3d ––––, 2018 WL 2220417, at *11 (S.D. Fla. May 14, 2018) (“[N]owhere in the D.C. Circuit’s opinion are the prior FCC orders overruled.”). The Court agrees with the former position. Contrary to the pronouncement of the Reyes court, the D.C. Circuit clearly held that it invalidated all of the FCC’s pronouncements as to the definition of “capacity” as well as its descriptions of the statutory functions necessary to be an ATDS. Indeed, the FCC specifically challenged the D.C. Circuit’s jurisdiction to review its 2003 and 2008 orders in ACA International. See 885 F.3d at 701. The FCC argued that “because there was no timely appeal from those previous orders, it [was] too late now to raise a challenge by seeking review of a more recent declaratory ruling that essentially ratifie[d] the previous ones.” Id. The D.C. Circuit disagreed. It held that the FCC’s prior rulings were reviewable on two grounds because the 2015 Declaratory Ruling purported to clarify the definitions of its previous orders and also denied petitions for rulemaking on the issue of ATDS functions. Id. And in reviewing the FCC’s descriptions of the functions a device must perform to be an ATDS, the D.C. Circuit relied on the FCC’s prior orders that “had said the same” as the two competing views present in the 2015 Declaratory Ruling. See id. at 703. The D.C. Circuit “set aside the [FCC’s] treatment of those matters” without qualification. Id. As a result, the Court finds that the FCC’s prior orders with regard to interpretations of “capacity” and descriptions of the statutorily enumerated functions a device must perform to be an ATDS were vacated in ACA International. The Court now turns to whether Plaintiff sufficiently alleged that Defendant used an ATDS as defined by the TCPA. The Court finds that Plaintiffs allegations are sufficient. For starters, Plaintiff repeatedly alleges that Defendant called her cell phone using an ATDS. Dkt. No. [1–1] ¶¶ 1, 25–26, 39, 42. A number of courts have found that alone is enough. See, e.g., De Los Santos v. Millward Brown, Inc., No. 13-80670-CV, 2014 WL 2938605, at *3 (S.D. Fla. June 30, 2014) (“To state a claim under the TCPA, Plaintiff need only to allege that Defendant used an autodialer.”); Hashw v. Dep’t Stores Nat’l Bank, 986 F.Supp.2d 1058, 1061 (D. Minn. 2013) (finding that where a plaintiff “pleaded that an ATDS was used to make the calls to his cellular phone … nothing more is required to state a claim for relief under the TCPA”).4 And although Defendant argues that such allegations are boilerplate and conclusory, see Dkt. No.  at 15–16, Plaintiff has bolstered her allegations with additional facts. For instance, Plaintiff alleges she specifically received a call on her cell phone from Defendant using an ATDS on December 16, 2015 (and continued to receive them thereafter). Dkt. No. [1–1] ¶¶ 27–28. And Plaintiff alleges that when she answered Defendant’s calls, 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. See id. ¶¶ 29, 36, 38. The Court finds that these additional allegations support the inference that Defendant used an ATDS. See Jenkins v. LL Atlanta, LLC, No. 1:14-cv-2791-WSD, 2016 WL 1029524, at *4 (N.D. Ga. Mar. 9, 2016). Defendant next argues that Plaintiff’s more specific allegations about how its ATDS works effectively pleaded her “ ‘out of court by alleging facts that foreclose a finding’ in her favor.” Dkt. No.  at 13 (quoting Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (en banc) ). Specifically, Defendant points out that Plaintiff alleged that calls were made from a “database” or “list of stored telephone numbers,” using a predictive dialer without human intervention. See Dkt. No.  at 16–22. Defendant contends that these allegations thus “aver equipment not regulated by the TCPA” in light of ACA International. Dkt. No.  at 13. The Court disagrees. As an initial matter, the Court is not convinced that Defendant’s interpretation of the TCPA is correct. Again, the TCPA defines an ATDS as having “the capacity” to perform two essential functions: “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). Defendant reads the TCPA requirement of “using a random or sequential number generator” to mean “the ability to ‘generate and then dial random or sequential numbers.” Dkt. No.  at 17 (quoting ACA Int’l, 885 F.3d at 702). Indeed, as set out above, the FCC’s 2003 Order seemingly recognized that the TCPA, as enacted, was aimed at telemarketers’ use of an ATDS “to create and dial 10–digit telephone numbers arbitrarily.” 2003 Order, 18 FCC Red. at 14,092 ¶ 132. The Supreme Court’s instruction “to give effect, if possible, to every clause and word of a statute,” see United States v. Menasche, 348 U.S. 528, 538–39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (quotation omitted), reinforces this reading because “if the statute meant to only require that an ATDS include any list of database of numbers, it would simply define an ATDS as a system with ‘the capacity to store or produce numbers to be called’ ” without mention of a “generator.” See Herrick, 2018 WL 2229131, at *8 (quotation omitted and alteration adopted). Yet on the other hand, Plaintiff points out that the phrase “using a random or sequential number generator” modifies “to be called” in the statute. Dkt. No.  at 19–20 (citing 47 U.S.C. § 227(a)(1) ). Therefore, the argument goes, a dialing algorithm in predictive dialing software using a set list could still meet the statutory requirement if it automatically generates phone numbers in a random or sequential order without human intervention. See id. The D.C. Circuit recognized this point in ACA International, writing that “[a]nytime phone numbers are dialed from a set list, the database of numbers must be called in some order—either in a random or some other sequence.” 885 F.3d at 702. This reading is in accord with what the FCC also found in its 2003 Order qualified as an ATDS: “the capacity to dial numbers without human intervention.” 2003 Order, 18 FCC Red. at 14,092 ¶ 132 (emphasis omitted); see also ACA Int’l, 885 F.3d at 703 (recognizing that the FCC’s ruling “that the ‘basic function’ of an autodialer is the ability to ‘dial numbers without human intervention’ … makes sense given that ‘auto’ in autodialer—or equivalently, ‘automatic’ in ‘automatic telephone dialing system—would seem to envision non-manual dialing of telephone numbers” (citation omitted) ). This is a difficult question of statutory interpretation to decide because the D.C. Circuit did not say that either interpretation was unreasonable, just that the FCC could not “espouse both competing interpretations in the same order.” ACA Int’l, 885 F.3d at 703. In fact, the D.C. Circuit went as far as saying “[i]t might be permissible for the [FCC] to adopt either interpretation.” Id. However, the Court need not decide this issue of statutory interpretation today. Even if Defendant’s suggested interpretation of the TCPA is correct, it is not mutually exclusive of Plaintiff’s allegations. In other words, Plaintiff did not allege that Defendant’s ATDS could place calls only from a database or list of stored numbers. Simply because Plaintiff stated that Defendant’s system could perform those functions does not mean it lacked the capacity to use the “random or sequential number generator” that Defendant argues is required. At this stage in the litigation, the exact system used by Defendant and its parameters are unknown. Instead, the Court must simply accept Plaintiffs allegations as true. See Perez, 774 F.3d at 1335. Because Plaintiff alleged that Defendant used an ATDS with certain functions (and not without any statutorily required function), that is sufficient to survive a motion for judgment on the pleadings.