For a case that “turns in part on what constitutes an automatic telephone dialing system (“ATDS”) under the TCPA” “to conserve the parties’ and judicial resources” the Honorable Judge Cecilia M. Altonaga, for the Southern District of Florida has stayed a case, pending FCC and 11^th Circuit rulings on the definition of an ATDS, in Barnes v. Cs Mktg. LLC, 2020 U.S. Dist. LEXIS 1054. This may spark another historic avenue for the defense to stave off ATDS claims.

In this Barnes case, the Plaintiffs brought a class action for alleged TCPA violations asserting that the Defendants commissioned automated telemarketing calls to them without their prior express consent, under an agreement between the Defendants and a third party.  A threshold issue in this case is whether the equipment used falls within the definition of an ATDS. The plaintiff testified yes; the Defendants testified no.

As a refresher, the TCPA defines the terms ATDS as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator; to dial such numbers.”  The FCC is authorized to interpret the TCPA and prescribe rules to implement it.  The FCC’s orders regarding the ATDS definition, were recently overturned in ACA International v. FCC, 885 F. 3d 687 (D.C. Cir. 2018) because of the inconsistency where a function of an autodialer is to dial numbers without human intervention, yet a device could still qualify as an autodialer under the FCC even if it needed human intervention.  Id. at 703.  Since ACA In’l, the FCC has twice sought public comment on how to interpret and apply the definition of an ATDS, but has not yet issued a decision.  Additionally, there is an appeal pending with the 11^th circuit,  Glasser v. Hilton Grand Vacations Co., LLC, where the sole issue is whether the Defendant’s dialing system, which has some human intervention, constitutes an ATDS.

Judge Altonaga held that if the FCC adopts a definition that “to be an ATDS, equipment must (a) use a random or sequential number to store or produce numbers and dial those numbers without human intervention, or (b) that predictive dialers do not meet the statutory ATDS definition, that decision will bind the court and may require dismissal.”  Therefore the Court granted a stay pending the FCC, and 11^th circuit Glasser, decisions.  The Court noted that the Plaintiffs here would suffer little prejudice because their ATDS claims had already been litigated and collected on in a different case against the third party that made the calls.  Here, Plaintiffs seeks to hold the Defendant liable for calls to numbers provided by the third party, not numbers randomly generated by the third party’s dialer, so the court held the parties and the court would certainly benefit from a clarification the ATDS definition.

TCPAWorld will keep track of developments as to the FCC and 11^th circuit ruling, as well as whether this argument becomes a successful tool for defendants nationwide.  Stay tuned.