In Sterk v. Path, Inc., — F.Supp.2d —-, 2014 WL 2443785 (N.D.Ill. 2014), Judge Der-Yeghiayan found, after discovery was permitted on the subject, that a text message service used an ATDS within the meaning of the TCPA.

The parties both argue that they are entitled to judgment as a matter of law as to whether Path used an ATDS to send the Text. The TCPA defines the term “automatic telephone dialing system” as “equipment which has the capacity—(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); see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir.2009)(noting that the FCC has confirmed that the ATDS restriction applied to text messages).  ¶  It is undisputed that when an individual creates a Path account, the user makes his or her phone contacts available to Path and that such contacts are then uploaded onto Path’s system. (R DSF Par. 7–10). Path contends that Sterk admits: (1) that “Path does not have any equipment with the capacity to generate random phone numbers,” (2) that “Path does not have equipment with the capacity to generate sequential phone numbers,” and (3) that “Path does not possess a number generator, i.e. equipment that can generate random or sequential numbers.” (R DSF Par. 15–17). Path contends that based on such admissions, Sterk cannot succeed on his TCPA claim. However, the Federal Communications Commission (FCC) has issued decisions stating that an ATDS may include equipment that automatically dials numbers from a stored list without human intervention, even when the equipment lacks the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. See Legg v. Voice Media Group, Inc., 2014 WL 2004383, at *3 (S.D.Fla.2014)(noting that “[t]he FCC determined that predictive dialers fall within the definition of an ATDS” and citing  In re Rules & Regulations Implementing the TCPA, 18 FCC Rcd. 14014 (FCC 2003)); Gragg v. Orange Cab Co., Inc., 2014 WL 494862, at *2 (W.D.Wash.2014)(stating that the definition of an ATDS includes equipment that is “a predictive dialer with the capacity to dial telephone numbers from a list without human intervention” and citing  In the Matter of Rules & Regulations Implementing the TCPA of 1991, 23 F.C.C.R. 559, 566 ¶ 14 (FCC 2008)); Jamison v. First Credit Services, Inc., 290 F.R.D. 92, 101 (N.D. Ill. 2013)(stating that the “FCC has already ruled that a predictive dialer constitutes automatic telephone dialing equipment three times” and citing In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 19 FCC Rcd. 19215, 19215, n. 1 (2004)); Vance v. Bureau of Collection Recovery LLC, 2011 WL 881550, at *2 (N.D.Ill.2011)(stating that “the FCC has indicated, and other courts have held, that predictive dialing systems do meet the definition of devices prohibited by the TCPA”). The FCC decisions regarding predictive dialers are final decisions by the FCC. See Bennett v. Spear, 520 U.S. 154, 177–178 (1997)(explaining requirements for an agency decision to be deemed final).  ¶  In general, a district court gives great weight, if not controlling weight, to final decisions of the FCC implementing and interpreting the TCPA. CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 450 (7th Cir.2010)(stating that “[i]n passing the Hobbs Act, Congress vested the power of agency review of final FCC orders exclusively in the courts of appeals” and that “[t]he Hobbs Act’s jurisdictional bar thus does not leave private parties without a mechanism for judicial review of agency action; it merely requires litigants to seek review through its specific procedural path”); Jamison, 290 F.R.D. at 97 (stating in a TCPA case that the court is “bound by the FCC’s orders, which are final and controlling”). The undisputed facts show that Path acquires a stored list of phone numbers from users. The undisputed facts also show that Path’s agent then uses automated equipment to make calls from that list. The FCC found that a predictive dialer, which makes calls from a database of numbers constitutes an ATDS.  In re Rules & Regulations Implementing the TCPA, 18 FCC Rcd. at 14091–92, 14143 n.31 (stating that “[a] predictive dialer is an automated dialing system that uses a complex set of algorithms to automatically dial consumers’ telephone numbers in a manner that ‘predicts’ the time when a consumer will answer the phone and a telemarketer will be available to take the call”); see also Legg, 2014 WL 2004383, at *3 (stating that the FCC has held that “[p]redictive dialers are automated systems that call telephone numbers stored in preprogrammed lists or databases in a manner designed to maximize the efficiency of call centers”). The FCC emphasized that the main requirement for an ATDS is not the capacity to generate random or sequential numbers, but rather to be able to “dial numbers without human intervention.”  In re Rules & Regulations Implementing the TCPA, 18 FCC Rcd. at 14092. The undisputed facts show that the equipment used by Path, which makes calls from a stored list without human intervention is comparable to the predictive dialers that have been found by the FCC to constitute an ATDS. The uploading of call lists from Path users is essentially the same as when a call list is entered by a telemarketer in a database. It is the ultimate calling from the list by the automated equipment that is the violation of the TCPA.  ¶  Path argues that when Path users choose through clicking prompts to upload their phone contacts, such actions constitute “human intervention.” (Ans. PSJ 13–14). However, such conduct by Path users merely relates to the collection of numbers for Path’s database of numbers. The undisputed evidence shows that the equipment used by Path’s agent made calls from the list without human intervention. It is such calling that the section of the TCPA at issue in this case covers, not the collection of numbers for storage. ¶  Path also points to the 2012 FCC decision in  In re Rules & Regulations Implementing the TCPA, 27 FCC Rcd. 15391 (FCC 2012), contending that the FCC indicated that it was not removing the requirement for a random or sequential number generator. (Ans. PSJ 6). However, in the portion of the FCC ruling cited by Path, the FCC merely reiterated that the equipment used does not have to actually have made a call using a random or sequential number generator, and that it only needs the capacity to do so.  In re Rules & Regulations Implementing the TCPA, 27 FCC Rcd. at 15391 n.5. The FCC did not indicate that it was withdrawing its prior decisions providing an alternative basis for an ATDS if the equipment constitutes a predictive dialer. The FCC in fact supported its prior decisions by stating that an ATDS covers “any equipment that has the specified capacity to generate numbers and dial them without human intervention….” Id. Thus, the FCC did not, as Path asserts, reaffirm the requirement for a random or sequential number generator capacity. Therefore, Sterks’ partial motion for summary judgment is granted and Path’s motion for summary judgment is denied.  ¶  The court also notes that even if the FCC rulings were not controlling in this case, this court agrees with the reasoning set forth in such rulings. The congressional history of 47 U.S.C. § 227(a)(1) shows that Congress envisioned that the language in the TCPA might not be able to account for future changes in technology, and that the FCC might need to interpret the TCPA to account for changes in technologies.  In re Rules & Regulations Implementing the TCPA, 18 FCC Rcd. at 14092–93. The FCC explained in 2003 that “[i]n the past, telemarketers may have used dialing equipment to create and dial 10–digit telephone numbers arbitrarily,” but that “the evolution of the teleservices industry has progressed to the point where using lists of numbers is far more cost effective.” Id. The interpretation of the TCPA by the FCC is well-reasoned and is appropriate to address the well-founded concerns by the FCC as to the threats posed to the public welfare and safety by certain telemarketing practices. Path also argues that the FCC’s interpretation leads to absurd results where even a cell phone could constitute an ATDS if able to make calls from a list. However, as Plaintiffs point out, the TCPA does not bar the ownership of an ATDS. The TCPA bars the improper use of an ATDS to harass unsuspecting consumers and place the public safety at risk. If a person used a cell phone to send countless unsolicited text messages that harmed the public welfare in such a fashion, it would not be an absurd result to find that the cell phone user had violated the TCPA. Thus, even if the FCC’s rulings were not controlling on this court, this court concurs with such rulings.  ¶  Path also argues that the FCC’s rulings are unconstitutionally overbroad and vague. Generally, when a party challenges a governmental action on its face based on “vagueness and overbreadth grounds, the ‘court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected’ speech.” Wisconsin Right To Life, Inc. v. Barland, 2014 WL 1929619 (7th Cir.2014)(quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)). In the instant action, there has been no showing by Path that the FCC’s rulings would limit a substantial amount of constitutionally protected speech. In fact, the FCC explained in its rulings that “[t]he TCPA does not ban the use of technologies to dial telephone numbers,” and that it “merely prohibits such technologies from dialing emergency numbers, health care facilities, telephone numbers assigned to wireless services, and any other numbers for which the consumer is charged for the call.”  In re Rules & Regulations Implementing the TCPA, 18 FCC Rcd. at 14092–93. The FCC’s rulings provide clear guidance to telemarketers and are not overly broad. Telemarketers do not have a constitutionally protected right to foist their operating costs on unsuspecting members of the public or to place the public’s safety at risk. Path has thus failed to show that any of the FCC’s rulings were unconstitutional.