Following the D.C. Circuit’s opinion in ACA Int’l v. FCC, No. 15-1211, 2018 U.S. App. LEXIS 6535 at *9 (D.C. Cir. Mar. 16, 2018) (“ACA Int’l”), members of the Bar on all sides have found themselves potentially living in a throwback era. This is particularly true with respect to what may or may not qualify as an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq.

For the last 15 years (with the exception of the past month), predictive dialers generally have been considered to qualify as an ATDS under the TCPA, owing to FCC rulings on the subject. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 at 77 (2003) (“2003 TCPA Order”); Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, CG Docket No. 02-278, FCC Docket No. 07-232, 23 FCC Rcd 559 (2008) (“2008 TCPA Ruling”). However, in ACA Int’l, the D.C. Circuit concluded that the FCC’s definition of ATDS in its 2015 TCPA Omnibus, as well as in comparison to its 2003 TCPA Order and 2008 TCPA Ruling, was inconsistent and lacked the clarity sufficient to qualify as reasoned decision-making. See ACA Int’l, 2018 U.S. App. LEXIS 6535 at *27. (More on that here.)  So, it seems ACA Int’l wipes the slate clean on exactly what qualifies as an ATDS, sending everyone back to basics—i.e., the statutory definition set out in 47 U.S.C. § 227(a)(1)—at least until the FCC gets around to issuing its clarifying order.

The first opinion to address the definition of “ATDS” post-ACA Int’l endorses a fresh start for predictive dialers under the TCPA. In Marshall v. CBE Grp., Inc., No. 2:16-cv-02406-GMN-NJK, 2018 U.S. Dist. LEXIS 55223 (D. Nev. Mar. 30, 2018), the court granted summary judgment in defendant’s favor as to plaintiff’s TCPA claim, finding that a manual click-to-dial application combined with a LiveVox cloud-based system did not qualify under the statutory definition of ATDS. See id. at *16. The court reasoned that “[p]laintiff cannot rely on the FCC’s definition of an ATDS to the extent it includes systems that cannot be programmed to dial random or sequential numbers, as is the case with some predictive dialers.” Id. The court acknowledged that “the D.C. Circuit explicitly rejected [the FCC’s] ‘expansive’ interpretation of the TCPA, particularly as that definition pertained to systems that may not, in fact, have the capacity to dial randomly or sequentially.” Id. at *17. While the Marshall court, in dicta, entertained plaintiff’s argument that the 2003 TCPA Order remained binding, even if the 2015 FCC Omnibus TCPA Ruling did not, the court fell back on a human intervention analysis, concluding that, “to the extent the FCC’s previous orders remain intact, the human intervention element weighs in favor of a finding that the [manual clicker agent], in conjunction with LiveVox, is not an ATDS.” Id. at *19.