Time for Clarity: Two Courts Reach Opposite Conclusions on the Viability of the FCC’s Predictive Dialer Rulings on the Same Day Because TCPAland

Herrick v. GoDaddy – ORDER Granting D MSJ 5.14.18

As we reported yesterday, a court in the Southern District of Florida just held that the FCC’s 2003 and 2008 predictive dialer rulings survived their brush with the D.C. Circuit Court of Appeal and remain binding law, even if the 2015 TCPA Omnibus ruling was set aside as inconsistent with those earlier rulings. See Reyes v. Bca Fin. Servs., Case No. 16-24077-CIV-GOODMAN, 2018 U.S. Dist. LEXIS 80690 (May 14, 2018 S.D. Fl.)(“Bad Reyes.“)

A couple thousand miles away in Arizona, however, another Court was issuing a diametrically opposing ruling at roughly the exact same time. In  Herrick v. LLC, Case No. CV-16-00254-PHX-DJH, Doc. No. 107 (D. Az. May 14, 2018) Judge Humetewa found that ACA Int’l absolutely did away with the FCC’s earlier predictive dialer pronouncements. It went on to reject reliance on those Orders (characterizing them as “defunct”) or any subsequent district court rulings applying them:

“these courts were bound and guided by the now-defunct FCC interpretations regarding this function. As such, the Court is also not persuaded to follow these holdings, particularly because the FCC interpretations relied upon by these courts were driven by policy considerations and not the plain language of the statute”

To make matters even cleaner, the Court explained why any reading of the TCPA that included predictive dialers was just flat misguided:

Broadening the definition of an ATDS to include any equipment that merely stores or produces telephone numbers in a database would improperly render the limiting phrase “using a random or sequential number generator” superfluous.

How great is that?

In light of the well-reasoned analysis of Herrick, Bad Reyes seems to have staked out a losing position. Nonetheless, the fact that two district courts could reach completely contrary conclusions on the exact same issue within minutes of each other is, well, kind of embarrassing. Obviously the FCC needs to step in and clean this up–and just yesterday it began the process of doing so.

Hopefully the Courts will now stand down, issue primary jurisdiction stays and the let the Commission do its work. Otherwise we will be facing more conflicting district court rulings and uncertainty will continue to reign supreme in TCPAland.