Just this week I explained how a tentative majority position is developing in TCPAWorld, with the statutory ATDS approach really gaining steam. Well here’s yet another big win for the statutory ATDS position—and this one has a note of finality about it
You’ll recall that in late July we covered an aberration – a Magistrate Judge in Florida had held that the FCC’s 2003 and 2008 Predictive Dialer rulings survived ACA Int’l. At the time it had been solidly four months since another decision had so held—an eternity in TCPAWorld time. Since the Magistrate Judge’s decision in Denova, precisely zero courts have reached this same conclusion. Well the Defendant in Denova objected to the magistrate judge’s ruling and, wouldn’t you know it, the district court just sustained those objections and set aside the ruling in favor of the statutory definition.
In Denova v. Ocwen Loan Servicing, CASE NO. 8:17-cv-2204-T-23AAS, 2019 U.S. Dist. LEXIS 163014 (M.D. Fl. Sept. 24, 2019) the Hon. Steven D. Merryday sustained Defendant’s objections to a recommended order denying summary judgment in its favor on a TCPA ATDS claim. The analysis here is about as neat and tidy as you’ll find in an ATDS decision. The Court: i) recites the statutory definition; ii) acknowledges that the FCC issued a 2003 Order sweeping predictive dialers within the statute; iii) notes that predictive dialers do not necessarily dial randomly or sequentially as the statutory definition requires; iv) discusses the impact of ACA Int’l on the FCC’s predictive dialer rulings; and v) concludes that the earlier FCC rulings were set aside.
As the Court recites matters:
Assailed by ACA International as contradictory, arbitrary, and exhibiting “two minds,” the 2003 and 2008 declaratory rulings merit no deference.
The court goes on to analyze the syntax of the ATDS definition and concludes—to really no surprise—that the statutory definition means what it says. The Denova court’s analysis deals with the pesky comma as I described earlier in the week—but with far less reference to potatoes:
Because the statutory definition of an ATDS contains a list — “to store or produce” — that precedes a comma and because the qualifying phrase — “using a random or sequential number generator” — follows the comma, the phrase qualifies both “store” and “produce.”
I literally just said that on Tuesday. Probably just a coincidence.
And just to be sure, the Court issues an epic smackdown of Marks ripe for the plucking:
“Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), finds intolerable ambiguity in the definition of an ATDS and embarks on an ambiguous quest to discover the (always malleable) congressional intent, the natural and grammatical reading of the TCPA’s definition of an ATDS — the focus of which is the capacity to generate random or sequential numbers — compels the conclusion that to constitute an ATDS the system must possess the capacity (1) to store telephone numbers using a random or sequential number generator or (2) to produce telephone numbers using a random or sequential number generator.”
Really nice stuff.
So a couple of notes here. First, notice that this was not a fantastic test case for Ocwen as it allegedly called Plaintiff over 1,300 times after she asked for calls to stop. Bold. Nonetheless, it all worked out so—nice job!
Second, and more importantly, no Court has found that the 2003 and 2008 predictive dialer rulings survived ACA Int’l since March, 2019. Yep. It has been over six months since any court has made such a finding. In that time eighteen different district court rulings have issued on the meaning of ATDS—all of them have found the FCC’s predictive dialers orders superceded and defunct.
I’m calling it folks. The argument that the FCC’s predictive dialer rulings compel a finding that predictive dialers are subject to the statute is officially dead.