Keep up everyone.

In the last few days we’ve seen a flurry of developments on the ATDS definition. First came Lord and Dominguez requiring random or sequential number generation. Then came Pinkus holding that predictive dialers are not covered by the TCPA. Then came TrueBlue affirming that calling from a list is not sufficient to trigger statutory coverage. But last week we saw a pair of decisions out of New Jersey to the contrary–the Grand Duchess will post on those shortly–and now the Northern District of California’s Hon. Yvonne G. Rogers has squarely held that predictive dialers do remain subject to the TCPA after all.

In Abante Rooter and Plumbing, Inc. v. Alarm. Com, Case No. 15-cv-06314, 2018 WL 3707283 (N.D. Cal. Aug. 3, 2018) the court denied cross-motions for summary judgment on the issue of whether the dialer used by the defendant qualified as an ATDS for purposes of the TCPA.  Defendant sought summary judgment arguing that the FCC’s 2003 and 2008 Predictive Dialer Rulings are no longer viable after ACA Int’l. Plaintiff sought judgment arguing that those rulings do remain binding and that Alarm.com used just such a dialer. The Court denied both motions finding that the FCC’s rulings remain binding but that Plaintiff failed to prove Alarm.com used a predictive dialer to begin with.

The Court begins its analysis by squarely rejecting Alarm.com’s argument that the 2003 and 2008 Predictive Dialer rulings were vacated by ACA Int’l:

First, ACA International invalidated only the 2015 FCC Order—the court discusses but does not rule on the validity of the 2003 FCC Order or the 2008 FCC Order.

Eesh, that’s a bad start.

The Court also notes that ACA Int’l observed that the FCC has the ability to expand the statute to include predictive dialers: “[t]he court in ACA International suggests that including a Predictive Dialer in the definition of an ATDS is a permissible interpretation of the statutory language in the TCPA.” This, of course, was an observation made back in bad Reyes, which really seems to be beside the point–just because the FCC can, on reconsideration, expand the statute to include such dialers does not mean that its previous rulings–found by ACA Int’l to contradict later rulings–are currently good law. But the Abante Rooter court sees matters quite differently.

Just to complete the trifecta, the Court also concludes that “even if the D.C. Circuit had vacated the 2003 and 2008 FCC Orders, ACA International does not control the
Ninth Circuit’s interpretation of the statutory language of the TCPA.” Abante Rooter at p. *7.  

On the flip side, the Court also rejected Plaintiff’s evidence on the subject. Plaintiff’s expert–our friend and foe (can you be both?) Randall Snyder–did not actually inspect Alarm.com’s dialer and, as such, could not opine as to its actual functionalities. And, “without proffering direct evidence, plaintiffs cannot show, as a matter of law” that Alarm.com used a predictive dialer in the first place.

Notably, Abante Rooter is the second Northern District of California decision to hold that the FCC’s predictive dialer rulings were not vacated by ACA Int’l. That sounds like a trend to me.