In Maes v. Charter Communication d/b/a/ Spectrum Cable, 18-CV-124-JDP, 2018 WL 5619199 (W.D. Wis. Oct. 30, 2018), Judge Peterson found that a TCPA adequately pleaded the use of an ATDS after ACA Int’l.
Charter also contends that the court of appeals must have ruled on the 2003 order, as well as the 2015 order, because the court ruled that it had jurisdiction to review it. This position was also adopted in Marks v. Crunch San Diego, 904 F.3d 1041 (9th Cir. 2018), a case published after the parties here completed their briefing and which is thus far the only appellate case to rule upon the validity of the prior FCC orders.3 However, the discussion of jurisdiction in ACA International is ambiguous—the court of appeals actually states two grounds for jurisdiction and only one of them would provide jurisdiction to review the 2003 order. ACA Int’l, 885 F.3d at 701 (stating that either (1) the FCC reopened consideration of the 2003 order and the court had jurisdiction to review it or (2) the 2015 order contains clarifications not found in prior rulings and the court has jurisdiction to review it even if it cannot review the prior rulings). But assuming that Charter is correct and the court of appeals invoked jurisdiction to review the 2003, 2008, and 2012 orders, the court of appeals did not actually review them. Its analysis and holding were limited to the 2015 order: it looked at the ways in which the 2015 order expanded upon prior rulings, and then struck down those expansions as unreasonable. Although it discussed the content of the 2003 order, it did so only to highlight its contradictions with the new rules. Charter’s final argument relies on a request for comment the FCC issued in response to ACA Int’l.4 Charter says that the FCC “explicitly recognized that its prior precedent on what qualifies a device as an ATDS was vacated.” Dkt. 17, at 6. Charter also points out that power has shifted within the FCC, and the dissenters to the 2015 order have taken control of the agency, suggesting that the FCC will soon promulgate rules that define autodialer more restrictively. But this argument is undeveloped and unpersuasive. Charter does not point to any language in the request for comment stating that the commission’s old rulings are invalid and Charter cites no authority that the FCC has the power to invalidate a rule in the context of a request for comment. Even assuming that the FCC will promulgate new rules that are in Charter’s favor, Charter has made no argument regarding whether the rules would apply retroactively. See Beller v. Health & Hosp. Corp. of Marion Cty., Indiana, 703 F.3d 388, 391 (7th Cir. 2012) (substantive regulatory changes are not retroactive unless Congress has given the agency express authority to create retroactive rules and the agency uses language expressly requiring retroactive application). Regardless what the FCC does in the future, this court must apply the law as it exists today. . . .This court concludes that it is still bound by the FCC’s 2003 ruling that a predictive dialer is an autodialer, even if the device does not dial random or sequentially generated numbers. But even if Charter were correct that ACA International vacated the 2003 order, it is not clear that the court would adopt Charter’s proposed construction of the TCPA. For example, in Marks, the court concluded that the 2003 ruling on predictive dialers was no longer valid, but the court’s construction of the statutory definition of autodialer was essentially the same as the definition found in the FCC’s 2003 order. Marks, 904 F.3d at 1051 (holding that under the statutory language, equipment can qualify as an autodialer even if it does not have the capacity to generate random or sequential numbers); but see Pinkus, 319 F. Supp. 3d at 938 (holding the opposite). Because the court has concluded that the 2003 order remains in effect, it will not decide whether the statutory language should be construed differently.