Just what TCPAWorld needed—something else to debate.

We’re going to need a replay review on this one folks. And no, I’m not talking about football.

In Gary v. Trueblue, Inc., No.18-2281, 2019 U.S. App. LEXIS 26959 (6th Cir. Sept. 5, 2019) the Sixth Circuit Court of Appeal  appears to have held the 2003 and 2008 predictive dialer rulings are now defunct and came tantalizingly close to holding that the TCPA’s ATDS definition requires random or sequential number generation. Whether or not you believe it actually did adopt the statutory definition likely turns on which side of the “V” you live on.

First, you all remember the TrueBlue cases from last year, I presume. In the first decision the Court denied the Plaintiff’s motion for summary judgment concluding that the text message platform at issue did not have the ability to dial randomly or sequentially. Gary v. TrueBlue, Inc., Case No. 17-cv-10544, 2018 WL 3647046 (E.D. Mich. Aug. 1, 2018). And then we were treated to a second case where the Court affirmed its earlier analysis and entered judgment in favor of the Defendant. Gary v. Gershwin A. Drain Trueblue, Case No. 17-cv-10544, 2018 U.S. Dist. LEXIS 175021 (E.D. Mich. Oct. 11, 2018).

The pro per Plaintiff appealed the judgment in favor of the Defendant, which set up the incredible prospect that the Sixth Circuit Court of Appeal would adopt the statutory read applied by the district court. Indeed, in football terminology, this was the equivalent of a first and goal from the one. Yet the Sixth Circuit’s opinion, which is a brief summary-style ruling, appears to have taken a knee on the goal line. But did it break the plane?

Here’s what everyone will agree on. The opinion recites the district court’s ruling, in part,  as concluding that “the TCPA does not prohibit the use of devices with automated functions… [but rather] the statute requires a showing that the system has the  capacity to randomly or sequentially dial or text phone numbers.” But search as you may, you won’t find the words “we agree” or “we disagree” anywhere in the opinion.

Instead, the Sixth Circuit plays coy on the issue of ATDS functionality. Rather than affirmatively state that the district court got it right, the Court finds that the Plaintiff failed to demonstrate that the district court got it wrong—which may or may not be the same thing. Here’s what the court actually says: “First, [Plaintiff] asserts that the district court erred by not considering the FCC’s orders from before 2015 to have been binding. Under these orders, Gary believes that TrueBlue’s system qualifies as an ATDS. But Gary has not shown that this is true.”

Full stop. That’s it. That’s the analysis.

That appears to be a clear enough holding that the 2003 and 2008 rulings are overturned—take that Ammons— but it is not quite the affirmance of the statutory approach adopted by the district court that we were all hoping for.  Then again, the necessary implication of the ruling appears to be that the statutory definition now prevails, correct? The only other option would seem to be Marks, which the Court certainly does not appear to endorse.

The opinion goes on, however, to confirm that even if the ATDS definition were broader than the statutory definition—why would it even suggest that?— “Gary has not explained how TrueBlue’s system functions in way that would satisfy this [broader] definition.” (Again, what definition?) Later the Court noted that Plaintiff’s citation to “unhelpful, general internet articles [] did not create a genuine dispute about the matter.” But again the precise “matter” that is in dispute (or not in dispute as the case might be) is not identified. Eesh.

What is clear after Gary is that the Sixth Circuit definitely did (or did not) adopt the statutory TCPA definition and definitely rejected the 2003 and 2008 FCC Predictive Dialer rulings. Probably.

Let the debate begin.

Unrelated, the Pac 12 is definitely the best conference in college football this year, no?