United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
case, Plaintiff Sueanne Swaney sued Defendant Regions Bank
alleging violations of the Telephone Consumer Protection Act
of 1991 (“TCP A”), 47 U.S.C. § 227. The
matter came before the court on the parties' cross
motions for summary judgment on a single issue: whether
Defendant's system qualifies as an “Automatic
Telephone Dialing System” (“ATDS”) as
defined by the TCPA.
13, 2015, the Magistrate Judge issued a Report and
Recommendation that Plaintiffs motion for summary judgment be
granted, and that Defendant's motion for summary judgment
be denied. The Magistrate Judge reasoned that Defendant's
system qualified as an ATDS because it has the
“capacity to dial numbers without human
intervention” regardless of any showing that it has the
capacity to store or produce telephone numbers using a random
or sequential number generator. In reaching this conclusion,
the Magistrate Judge relied on language from a 2003 FCC
decision which concluded that, in order to be considered an
ATDS, the “equipment need only have the “capacity
to store or produce telephone numbers.” (Doc. # 117);
see In re Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, CG Docket No.
02-278, 18 FCC Rcd. 14014, at ¶129 (2003) (the
“2013 FCC Order”).
objected to the Magistrate Judge's Report and
Recommendation. (Doc. # 118). This court sustained
Defendant's objection in part and referred the case back
to the Magistrate Judge to consider the issue presented in
the parties' respective motions in light of an
intervening 2015 decision from the FCC. In the Matter of
Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, CG Docket No. 02-278, 2015 WL
4387780 (2015). In his Supplemental Report and
Recommendation, in light of the 2015 FCC Order, the
Magistrate Judge again recommended that Plaintiff's
motion for partial summary judgment be granted, and
Defendant's motion for summary judgment be denied. (Doc.
FCC's 2015 Order was then reviewed by the D.C. Circuit
Court, and this case was stayed pending the decision on that
review of the 2015 FCC Order. (Doc. # 139). The D.C. Circuit
has now issued its decision regarding the 2015 FCC Order.
ACA International v. Fed. Communications Commission,
885 F.3d 687 (D.C. Cir. 2018). The parties have submitted
supplemental briefing on the effect of that decision. (Docs.
# 147 - 150).
ACA International, the D.C. Circuit invalidated
certain portions of the 2015 FCC Order, but not the portion
of the Order reaffirming the FCC's 2003 determination
that, “while some predictive dialers cannot be
programmed to generate random or sequential phone numbers,
they still satisfy the statutory definition of an
ATDS.” 885 F.3d at 702 (quoting the 2013 FCC Order). In
its 2003 Order, the FCC concluded that the defining
characteristic of an ATDS is “the capacity to dial
numbers without human intervention.” 2003 FCC Order at
14092. In light of ACA International, that
proposition still stands. 885 F.3d at 702.
principal argument against summary judgment in this case is
that “to be an ATDS, equipment must have the capacity
to store or produce numbers using a random or sequential
number generator, even if that capacity is never used.”
(Doc. #118 at 4-5). But that argument cannot be squared with
the continuing validity of the 2003 FCC Order. “To
determine whether a dialer is a predictive dialing system,
and therefore an ATDS, ‘the primary consideration ...
is whether human intervention is required at the point in
time at which the number is dialed.'” Strauss
v. CBE Grp., Inc., 173 F.Supp.3d 1302, 1309 (S.D. Fla.
2016), reconsideration denied, 2016 WL 4402270 (S.D.
Fla. June 8, 2016) (quoting Brown v. NRA Grp., LLC,
2015 WL 3562740, at *2 (M.D. Fla. June 5, 2015) (citation
omitted)); see also Legg v. Voice Media Grp., Inc.,
20 F.Supp.3d 1370, 1374 (S.D. Fla. 2014) (explaining that
“defining characteristic” of ATDS is
“capacity to dial numbers without human
intervention”). Here, Plaintiff presented sufficient
evidence to demonstrate that the system at issue has the
capacity to dial numbers (i.e., send text messages)
without human intervention. Therefore, the Magistrate
Judge's recommendation that Plaintiff is entitled to
partial summary judgment on this issue of whether the
Defendant's system is an ATDS under the TCPA is due to be
careful consideration of the record in this case and the
Magistrate Judge's Reports and Recommendations,
Defendant's objections are OVERRULED.
The court hereby ADOPTS the Reports of the
Magistrate Judge. (Docs. # 117, 134). The court further
ACCEPTS the recommendations of the
Magistrate Judge. It is therefore ORDERED as
Plaintiff's Motion for Partial Summary Judgment (Doc. #
59) is GRANTED. Defendant's Motion for
Summary Judgment (Doc. # 62) is DENIED.
matter is REFERRED to the Magistrate Judge
for further proceedings.