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It Will All Come Out in the “Wash”: Did a Southern California District Court Just Solve the TCPA’s ACA Int’l/ATDS Conundrum Once and For All?

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Sometimes the most obvious answer is the hardest one to see.

For weeks now the courts have been debating whether the 2003 and 2008 Predictive Dialer Rulings were set aside by ACA Int’l or just the 2015 TCPA Omnibus ruling. Indeed, the landscape is so fractured that TCPAland.com now has a separate menu feature dedicated to tracking these cases as they come out. 

But what if the answer is that ACA Int’l didn’t set aside any specific FCC rulings at all, just the FCC’s approach to defining the functions of an ATDS in any and all of its earlier orders?  That is the Eureka! moment contained within the reasoning in Wash. v. Six Continents Hotels, Case No. 2:16-CV-03719-ODW-JEM, 2018 U.S. Dist. LEXIS 145639 (C.D. Cal. Aug. 24, 2018). In Wash the Court ultimately denied a Defendant’s motion to dismiss a TCPA complaint alleging unlawful text messages, but not before obliterating all previous assumptions about how the ACA Int’l ruling interacts with earlier FCC rulings defining an ATDS.

Going step by step, the Court first determined–and contrary to recent rulings out of the Northern District of California— that the ACA Int’l determination is binding across the country. The analysis by the Court is compact and clear: “As an agency can make rulings that have nationwide effect, the finding of a court of appeals in reviewing an agency ruling also has nationwide precedential effect.” Wash at *6. Simple as that.

Next the Court considered what ACA Int’l actually reviewed. After noting that petitioners sought review of previous FCC orders–not just the 2015 Omnibus Order–the Court found that ACA Int’l “reaches previous orders filed by the FCC, and not just the 2015 Order immediately at issue.” Wash at *6. As did SessionsPinkus and Keyes before it, the Wash court noted that ACA Int’l specifically rejected the FCC’s contention that the D.C. Circuit Court of Appeal lacked jurisdiction to review the FCC’s 2003 and 2008 Predictive Dialer Rulings. 

In the Wash court’s view, ACA Int’l set out to answer two questions regrading the TCPA’s definition of an ATDS: “(i) when does a device have the ‘capacity’ to perform the two enumerated functions; and (ii) what precisely are those functions?” See Wash at *7, citing ACA Int’l at 695. After acknowledging that the D.C. Circuit’s answer to the second question is “somewhat less clear”,  the Wash court concludes that the “matters” set aside by ACA Int’l includes “both the definition of a predictive dialer as an ATDS, and the discussion of potential capacity of autodialer function.” See Wash at *8, fn 2.

And that’s where things get interesting. When turning to an analysis of Bad Reyes, the Wash court steps out of the binary world we’ve been living in and suggests that Courts have been looking at the issue of ACA Int’l‘s impact on earlier FCC rulings all wrong. Instead,Wash specifically rejects the reasoning of Bad Reyes noting that “[b]y its plain language, the Court in ACA Int’l did not set aside the 2015 ruling, but rather ‘the Commission’s treatment of [which functions qualify a device as an autodialer].'” Wash at *8 citing ACA Int’l, 885 F.3d at 703.  Instead:

“As the court in ACA did not set aside a ruling, but rather the FCC’s treatment of the definition of an autodialer, this treatment was set aside from all previous FCC rulings.”

Wash at *8-9

Well look at that.

The Court concludes: “It was the clear intention of the D.C. Circuit to set aside all such competing definitions until the FCC cho[o]ses to clearly establish that the ‘must be able to generate and dial random or sequential numbers’ standard is no longer a requirement for a device to be considered an ATDS.”

On behalf of TCPAland, I’d like to start a slow clap.

Wash feels like a defining moment in the seesaw battle over the ATDS definition. Just like when Good Reyes came out, I read Wash and think of course that’s the answer. Why couldn’t I see it before? ACA Int’l didn’t set aside any specific rulings or orders. Rather it rejected the specific reasoning of the FCC in approaching a specific matter–the definition of an ATDS. And that reasoning was clearly rejected across all of the FCC’s earlier rulings. This is similar to the analysis of True Blue, of course, but the Wash Court really breaks it down into much-needed baby steps.

Notably the Court goes on to deny the Defendant’s motion to dismiss because the Plaintiff–truthfully?–alleged that the dialer has the present capacity to randomly generate numbers to be dialed. See Wash at *10. That, the Court finds, is sufficient to state a TCPA claim under the statutory definition. Pretty non-controversial conclusion.

And–in further proof that HI is in the eye of the beholder–the Court pivots to a finding that human intervention “looks to the time a call or message is sent or dialer, not what might have happened earlier to enter the phone number into the system.” Wash at *13.  This, of course, is directly inconsistent with the recent ruling in Ramos and underscores why texters/callers should never count on human intervention for salvation.

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