What is an autodialer under the TCPA? That’s a good question and one with which courts across the country are struggling as much as Charles Darnay struggled with his aristocratic heritage leading up to the French Revolution. My memory of the CliffsNotes to the Dickens classic aside, fortunately, the Federal Communications Commission (“FCC”) is, as its Chairman recently described it, “poised” to provide clarity on what types of devices fall within the definition as part of an ongoing declaratory ruling proceeding. Nonetheless, several courts recently have issued divergent decisions regarding technology that constitutes an autodialer under the statute.

The Best of Times: On September 21, 2018, the U.S. District Court for the District of New Jersey held, in Fleming v. Assoc. Credit Servs., Inc., No. 16-3382, 2018 WL 4562460 (D.N.J. Sept. 21, 2018), that that the defendant’s calling platform (LiveVox’s Human Call Initiator (“HCI”)), which “dials numbers from a list that was not randomly or sequentially generated when the list was created” does not qualify as an “automatic telephone dialing system” (“ATDS” or autodialer) under the TCPA based on the statutory definition. In other words, because HCI did not randomly or sequentially generate the numbers that ultimately were contained on the list of numbers called, the platform did not fit the ATDS definition. Specifically, the court explained: “The phrase ‘using a random or sequential number generator,’ I believe, applies to the manner in which the numbers make their way onto the list – not to the manner in which the numbers are dialed once they are on the list.”

The Fleming court also added its take on whether the D.C. Circuit vacated not just the FCC’s 2015 Order in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), but whether it also vacated the Commission’s prior 2003 and 2008 predictive dialer rulings. After evaluating the current split amongst the courts as to that issue, the Fleming court confirmed that, when ACA Int’l “vacated the 2015 FCC Declaratory Ruling it also necessarily set aside the parts of the previous 2003 and 2008 FCC Orders that ruled that a predictive dialer was impermissible under the TCPA.”

Fleming represents the “best of times … the age of wisdom … the epoch of belief … the season of Light … [and] the spring of hope” for industry.

The Worst of Times: On the other end of the ATDS revolutionary spectrum stands the Ninth Circuit’s September 20, 2018 in Marks v. Crunch San Diego, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018). There, the appellate court agreed with Fleming that ACA Int’l, indeed, vacated all previous FCC orders regarding the autodialer definition that the 2015 Order reinstated – i.e., the 2003 and 2008 predictive dialer rulings. Because of that, according to the court, “only the statutory definition of ATDS as set forth by Congress in 1991 remains.” However, the Ninth Circuit panel found that the statutory definition itself “is not susceptible to a straightforward interpretation based on the plain language alone. Rather, the statutory text is ambiguous on its face.”

The panel, then, proceeded to issue its own take on what constitutes an autodialer under the Act. Specifically, the court took a different, broader view than Fleming, holding that an ATDS includes any platform that stores telephone numbers and dials them (even if the system only operates when turned on by a live person). This reading of the statute bisects the “store telephone numbers” portion of the ATDS definition from the “using a random or sequential number generator” element, such that any device that can store numbers in a list and then call them is an autodialer. Notably, the court largely took a pass on the human intervention issue – in which a certain amount of human action can remove the “automatic” element – by determining that all machines require some level of human interaction to set them in motion.

This is a significant holding and a departure from other precedent, but it seems unlikely that it will be persuasive to other courts ruling on the issue. Primarily, the plain language of the statute works against it, with “using a random or sequential number generator” being most naturally read to modify “store … numbers.” The Ninth Circuit itself previously found the language unambiguous in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), but in Marks, the panel took great pains to distinguish Satterfield by limiting it specifically to the “capacity” issue – a non-issue in Marks. Assuming that the statute, in fact, is ambiguous, however, the panel stretched to arrive at what appears to be its preferred conclusion. Its opinion begins by noting that Congress passed the TCPA to prevent telemarketers from spamming entities like hospitals and tying up vital phone lines. Telemarketers did this by creating those numbers through random number generators, which leads to the conclusion that random or sequential number generators were Congress’s focus. But when considering congressional intent, the Ninth Circuit panel did not consider the reasons it provided for Congress’s initial action, instead relying on the implications of its inaction. Finally, this interpretation suffers from the same defect that the D.C. Circuit discussed in ACA Int’l – namely that it would turn every smartphone into a potential TCPA violation. Smartphones not only have the capacity to call from a set list, they’re found on almost every person in the country, which would make the scope of an ATDS almost universal. Clearly, Marks represents the “worst of times.” But, then again, the FCC’s decision clarifying the scope of the ATDS definition may render Marks moot.

We’ll keep you updated on future developments here, and, in the meantime, a list of recent TCPA actions can be found here.