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

Everyone in TCPAWorld has been closely following the Facebook Ruling Resource Pagewhere 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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