In In re Collecto, Inc., 2016 WL 552459, at *2-4 (D.Mass., 2016), Judge Stearns summarily rejected a challenge to the FCC’s authority to define an ATDS.
Collecto’s summary judgment argument begins with the contention that the court should give no weight whatsoever to the FCC’s determination that a predictive dialer is an ATDS for TCPA purposes. According to Collecto, the FCC lacks the statutory authority to “modify” Congress’ definition of an ATDS, and, in any event, relied on “false hearsay” in doing so.4 Def.’s Mem. at 14; Reply at 5-6. Collecto’s opening argument does not survive the Administrative Orders Review Act (Hobbs Act), 28 U.S.C. § 2342(1), under which this court lacks jurisdiction to set aside, suspend, or adjudicate the validity of an FCC ruling and final order. . . . Alternatively, Collecto contends that to the extent that the FCC has statutory authority to regulate autodialers, it is located in 47 U.S.C. § 227(b)(2), which grants the agency the authority to “implement the requirements of this subsection.” According to Collecto, this wording was intended by Congress as a limitation precluding the FCC from issuing rules interpreting subsection 227(a) (which defines an ATDS). The argument, however, founders on 47 U.S.C. § 201(b), which provides in relevant part: “The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.” (Emphasis added). Congress, in other words, delegated plenary authority to the FCC to promulgate regulations to implement the provisions of Chapter 5 of Title 47 (governing all wire and radio transmissions), including those of 47 U.S.C. § 227(a). Finally, Collecto argues that even if deemed a valid exercise of agency powers, the FCC’s autodialer determination does not deserve any deference under the doctrine of Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). As a rule, before applying Chevron deference, a reviewing court is to decide whether the government agency was granted statutory authority by Congress to issue rules and declaratory rulings that carry the force of law. See United States v. Mead Corp., 533 U.S. 218, 232-236 (2001). But this is a matter to be addressed in the Court of Appeals, not this court. Even if I were to read the FCC’s definition as inconsistent with the text of the TCPA, I do not have the authority to undo or revise an FCC ruling. The jurisdictional limitation of the Hobbs Act is clear in this regard: “The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of … all final orders of the Federal Communication Commission made reviewable by section 402(a) of title 47.” 28 USC § 2342 (emphasis added). Collecto objects that “[f]or this Court to hold that it has jurisdiction to decide Collecto’s motion for summary judgment, but [to also] hold that it does not have jurisdiction to address the validity of the FCC’s ATDS Rules would be fundamentally unfair and violate Collecto’s right to due process.” Def. Mem. at 15.6 Collecto proposes that the court either disregard the FCC’s rulings (which is a nonstarter),7 or alternatively, dismiss the case for lack of subject matter jurisdiction. Collecto’s due process argument ignores the fact that the Hobbs Act provides a powerful forum in which to challenge an FCC ruling – the federal circuit courts of appeal. See 28 U.S.C. § 2344. Collecto admits as much, but argues that the limited window in which to file an appeal – 60 days from the date of the agency’s final action –works a procedural unfairness. Collecto complains that because of the short limitations period a defendant may have “little reason to know or participate in the agency’s proceedings” before it is “time-barred from Hobbs Act review.” Reply at 14. Collecto does not, however, argue that it was unaware of either the right of appeal or the FCC’s 2015 Order. In a parting shot, Collecto contends that even if the court yields to the finality of the FCC Orders, the Noble and GC Dialers do not fit within the definition of an ATDS because the dialers are, to a degree, dependent on human intervention.9 The short answer is that the FCC’s definition of an ATDS is based on the capacity of a dialer to operate without human intervention, and not on whether some act of human agency occurs at some point in the process.10