This article first appeared (on Tuesday) on TCPAland and is republished here with permission. You will want to read it in conjunction with this other TCPA-related article by Eric Troutman, also fresh from the courts this week.
As soon as ACA Int’l was handed down, the debate began. Are predictive dialers still covered by the TCPA following ACA Int’l’s reversal of the FCC’s ATDS formulation or is the statute’s narrow definition now the law of the land?
The debate was sparked by the D.C. Circuit Court of Appeal’s express refusal to limit its review of the FCC’s ATDS craftsmanship to the 2015 TCPA Omnibus Ruling. Although the FCC had urged that Judge Srinivasan and co. lacked jurisdiction to evaluate the Commission’s earlier rulings regarding predictive dialers the D.C. Circuit disagreed, holding that “[w]hile the Commission’s latest ruling purports to reaffirm the prior orders, that does not shield the agency’s pertinent pronouncements from review.” While that sounds pretty clear, after teeing up the issue the Court stopped short of expressly invalidating the earlier FCC orders while simultaneously stressing the inconsistency between the prior predictive dialer rulings and the FCC’s 2015 TCPA Omnibus ruling with respect to the functionalities of an ATDS. As you can tell, this ruling was more fun to unpackage than a new iPhone.
That inconsistency exists between the predictive dialer rulings and the Omnibus suggests that the FCC itself may have invalidated the 2003 and 2008 predictive dialer rulings long before ACA Int’l came along. But the Omnibus also expressly affirmed the FCC’s earlier predictive dialer rulings, creating an impossible universe-ending paradox that the D.C. Circuit Court of Appeal saved us from by invalidating the Omnibus just in time, while leaving just enough confusion regarding the 2003 and 2008 predictive dialer rulings in order to assure a sequel.
As if there weren’t already enough angels dancing on the head of that pin, we now have two district court rulings addressing the issue and coming out in opposing directions. First came Marshall v. CBE Grp., Inc., No. 216CV02406GMNNJK, 2018 WL 1567852, at *4-8 (D. Nev. Mar. 30, 2018), a neatly worded opinion that found ACA Int’l set aside the FCC’s earlier predictive dialer rulings. Marshall’s reasoning seemed straight forward and dead on. You can’t apply FCC rulings that are contradicted by other FCC rulings leading to the reversal of those FCC rulings by the D.C. Circuit Court of Appeal.
But in TCPAland, the Empire always strikes back. Within weeks of the Marshall decision House Democrats quickly brought a discussion draft bill to expressly change the definition of ATDS to include dialers that call from a list of numbers. Long before that bill could work its way through Congress, however, the other shoe had to drop in the judiciary–and now it has.
Just today – a day that will already live in TCPA infamy — a court in the Southern District of Florida has held that the FCC’s 2003 and 2008 predictive dialer rulings do, in fact, survive ACA Int’l, and remain good law. See Reyes v. Bca Fin. Servs., Case No. 16-24077-CIV-GOODMAN, 2018 U.S. Dist. LEXIS 80690 (May 14, 2018 S.D. Fl.)(“Bad Reyes“). Bad Reyes –for verily we already have a “good Reyes” in TCPAland – holds that the 2003 and 2008 FCC rulings survive ACA Int’l because the D.C. Circuit Court of Appeal never expressly said that they didn’t. But while that point is “fair enough,” one wonders whether the D.C. Circuit Court of Appeals was really to be excepted to spell out something so seemingly obvious as earlier FCC orders contradicted by later FCC orders are not to be applied as binding authority.
Who’s to say? In TCPAland there is never an easy answer. For every Marshall there must be a Bad Reyes to oppose it. And so now there is.