Not long ago it looked like the TCPA was headed for the dustbin of history. Courts were lining up behind a statutory approach to the TCPA—finding that the FCC’s earlier rulings expanding the statute were defunct—which meant that the TCPA would not apply unless numbers were randomly or sequentially dialed. RIP TCPA, and good riddance.

This statutory approach seemed all but assured among the district courts in the Third Circuit Court of Appeal’s footprint. After all, the case of Dominguez v. Yahoo, Inc., 2018 U.S. App. LEXIS 17350  (3rd Cir. June 26, 2018) seemed to hold rather squarely that random or sequential number generation was the hallmark of ATDS usage.

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But the district courts did not receive the message uniformly. While some courts have followed Dominguez faithfully and required random and sequential number generation—see e.g.  Fleming v. Associated Credit Servs., No. 16-3382 (KM) (MAH), 2018 U.S. Dist. LEXIS 163120 (D.N.J. Sep. 21, 2018)—others have, rather oddly, concluded that Dominguez requires fidelity to the FCC’s old predictive dialer rulings that actually contradict the holding in Dominguez. Go figure.

Recently, a district court within the Third Circuit footprint went a different direction entirely—applying an ATDS formulation that is purportedly derived from earlier FCC rulings but that looks suspiciously like the definition accepted in Marks. In Ruby v. Dish Network, CIVIL ACTION No. 18-0400, 2019 U.S. Dist. LEXIS 62472 (E.D. Pa. March 25, 2019) the court denied summary judgment on the issue of whether or not the Defendant used an automated telephone dialing system because the system had the capacity to dial automatically from a list of numbers. Hmmm.

Although the formulation the court applied sounds a lot like the statutory reading adopted by the Ninth Circuit in Marks, the Rubycourt never mentions the decision. Instead, it focuses entirely on the 2003 FCC Predictive Dialer ruling, which it reads in a rather unusual way. Whereas most courts look at the 2003 Ruling as focused on timing and use of predictive algorithms to place calls—the Ruby court reads the case in a much simpler fashion: in its view the FCC’s ruling covers any system “that can dial without human intervention from a pre-programed list of telephone numbers….”   Wow, does that sound like Marks and not look anything like what the FCC actually said in 2008.

Nonetheless, the Court applies this formulation and determines that the evidence supports a finding that Defendant’s dialer can make a number of calls with a designated wait period and the system allows businesses to program the dialer to independently make calls at a set frequency to a list of numbers without requiring a human to prompt each call. Thus, in the court’s view, the dialer might be an ATDS and the jury will have to determine Defendant’s fate.

Ruby is an interesting case for a few reasons. In the first place the court assumes, without any discussion, that the 2003 FCC predictive dialer ruling is still binding although a number of courts—including Marks itself, has found that the D.C. Circuit Court of Appeals overturned those rulings in ACA Int’l. Most courts struggle with the issue before coming out one way or other other, but the Ruby court just applies the FCC’s ruling. Simple as that.

Only it is not so simple. As alluded to above, the Court does not show fidelity to the FCC’s actual findings or conclusions in its 2003 Order. The FCC never, for instance, ruled that dialing automatically from a list constitutes usage of an ATDS.  That’s just not part of the order. It is, of course, the preferred interpretation of ATDS in the Ninth Circuit, but such a broad reading of the statute is fundamentally at odds with the Third Circuit’s take in Dominguez. So the Ruby court skips over Dominguez, misreads the FCC’s ruling and in so doing (inadvertently?) directly applies the Ninth Circuit’s formulation without ever mentioning Marks. What an odd ruling.

On the heels of Marks being adopted in the First Circuit earlier this week, seeing its creeping influence within the Third Circuit—where Dominguez should dominate—is really a bit disconcerting for TCPA defendants. Hang in there TCPAWorld.

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Editor's note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP -- and all insideARM articles - are protected by copyright. All rights are reserved.  


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