HOLD ONTO YOUR HATS: Interlocutory Appeal Granted in Case that Could Determine the Fate of Facebook’s FN7

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Everyone in TCPAWorld has been closely following the Facebook Ruling Resource Page, where we have tracked every ATDS decision handed down by the district courts since Facebook.

Even a quick look at the page–which you should be checking on occasion–confirms that the district courts are simply a mess when it comes to determining how a system can “store” telephone numbers using an ROSNG.

As Queenie explained just this week, some courts continue to hold that a system must produce TELEPHONE NUMBERS using an ROSNG to be an ATDS. But that is not really what Facebook says.

Other courts have held that under Facebook’s FN7 any system that uses an ROSNG to determine the sequence in which calls are made can qualify as an ATDS–and that is what has made human SELECTION dialers so important.  

Well a district court in Maine just certified the issue for interlocutory appeal and that could be a very big deal for TCPAWorld.

In McEwan v NRA, the district court had held “a device that calls phone[ ] numbers from a ‘preproduced list’ may still be an ATDS, so long as it ‘use[s] a random [or sequential] number generator to determine the order in which to pick’ the numbers from the list or otherwise stores the list of numbers using a random or sequential number generator.”

That’s a pretty clear distillation of the Plaintiff’s version of FN7.

And just yesterday the Court essentially admitted that there is substantial ground for disagreement on the question and decided to let the appellate court figure it out:

First, whether the TCPA is limited to dialing systems that generate phone numbers randomly in the first instance—that is, systems that create lists of phone numbers out of whole cloth by simply spitting out random ten-digit sequences—is a controlling question in this case….  Second, the proper scope of the TCPA in light of Facebook is a live issue as to which there exists substantial disagreement among the federal courts… Finally, an interlocutory appeal would help to expedite the ultimate disposition of this case. …
A ruling by the First Circuit directly adopting or rejecting FN7 would go a long way to helping to provide clarity on the ATDS issue. The Eighth Circuit COA recently issued a ruling that largely missed the point and the Ninth Circuit has addressed the issue, but in a non-published opinion. 
We’ll obviously keep an eye on this.
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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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