It has been a great run of ATDS decisions for TCPA defendants over the past few weeks. First, the Third Circuit Court of Appeal stated that Yahoo’s IM platform was not an ATDS for purposes of the TCPA because it did not randomly or sequentially generate numbers to dial.  Then the Pinkus case dismissed a predictive dialer TCPA case at the pleadings stage finding that the 2003 and 2008 FCC Predictive Dialer rulings were vacated by ACA Int’l and that predictive dialers lacking the ability to dial randomly or sequentially do not trigger the TCPA.  Last but not least, just last week a district court found squarely that dialing from a list of numbers does not trigger TCPA coverage and “automatic” texts are not “automatic” enough unless they are sent to random numbers.  Aww the good old days.

As endlessly occurs in TCPAland, the other shoe has now dropped. And it turned out to be a pair.

In simultaneous rulings issued last Thursday, the Hon. Jerome B. Simandle ruled twice that dialers calling from lists do qualify as automated telephone dialing systems for purposes of the TCPA after all. See Somogyi v. Freedom Mortg. Corp., No. 17-6546 (JBS/SJ) 2018 U.S. Dist. LEXIS 12697 (D.N.J. Aug 2, 2018) and Sieleman v. Freedom Mortg. Corp., Civil Action No. 17-13110 (JBS/JS), 2018 U.S. Dist. LEXIS 129698 (D.N.J. Aug. 2, 2018).

In Somogyi and Sieleman , the court not only shot down a request by the defendant to stay the action pending the outcome of pending FCC rulemaking post ACA Int’l–that’s a regrettable first-in-the-nation rejection of the primary jurisdiction doctrine by the way–but also read the Third Circuit’s recent decision in Dominguez v. Yahoo! to mean that the FCC’s prior predictive dialer rulings remain valid.  It also (twice) held that dialers calling from a list do qualify as an ATDS after all because the mere selection of a phone number “from among a population of hundreds of thousands of numbers” is sufficient to allege random and sequential number generation. This appears to be true even though the numbers comprising the list were not randomly generated but pertained to a specific targeted audience of human-entered phone numbers. This–as the Czar likes to say–is worthy of some rumination. Let’s walk through it.

First, the court refuses to stay either case because – regardless of what the FCC does when it rules on its pending Public Notice regarding the TCPA – the statutory definition of an ATDS would remained unchanged.  While that conclusion may seem non-controversial, it is actually quite inaccurate. The FCC has the power to clarify that the ATDS definition, for instance, actually does include dialers that call from a list or, for another instance, actually does not include dialers that call from a list. And it is expected to do just that. So while noting, correctly, that the words of the statute aren’t going to budge an inch the Court races past the simple fact that they don’t have to–the FCC can (and almost certainly will) fill in the gaps on the precise issues the Court takes up next.

So about those issues–next in line is whether the FCC’s prior 2003 Predictive Dialer Ruling remains viable after ACA Int’l? The Court answers “yes”  observing that the Third Circuit has recently stated “[i]n light of the D.C. Circuit’s holding, we interpret the statutory definition of an autodialer as we did prior to the issuance of the 2015 FCC Order.”  From this snippet–taken not-so-slightly out of necessary context– the Court concludes that the FCC’s earlier 2003 Predictive Dialer ruling remains valid. While it is certainly true that Dominguez expressly refused to follow the 2015 Omnibus ruling, it does not seem to follow that the earlier 2003 and 2008 Predictive Dialer rulings were thereby blessed and ratified by the Third Circuit. Indeed, Dominguez does not address those earlier rulings except to suggest– by necessary implication–that they were overruled given its ultimate holding that calls made to a list of numbers inputted manually do not trigger statutory coverage. Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018)

Oh yeah, and about calls from a list, the Somogyi and Sieleman courts have something to say on that topic as well. Disregarding the use of the phrase “random or sequential number generator” in the TCPA’s ATDS definition, the Court concludes dialing from a list of finite and individually-entered numbers qualifies as the use of an ATDS because the “system selected the next number from among a population of hundreds of thousands of numbers belonging to existing customer, the selection of the next call is what matters, and it is random.”   Hence, the court reads the phrase “using a random or sequential number generator” to mean “using a random or sequential number selection process.” I’m not sure “generator” is a synonym of “selector” in anyone’s thesaurus, but there you have it.

It is extremely difficult to square these ruling with the language in Dominguez respecting calling from lists of numbers and, of course, impossible to square this decision with Pinkus or TrueBlue. So the same phone call made to a resident of Illinois is legal under the same statute that makes that same call illegal in New Jersey. And all that because the dialer calls from a list of numbers–which this court (twice) finds is illegal thanks to a decision by the Third Circuit Court of Appeal finding that dialing from a list of numbers is just fine. You can’t make this stuff up. Heck, we can hardly keep track of it.