A New Day for Predictive Dialer TCPA Cases? First Court Holds That FCC Predictive Dialer Rulings Survive ACA Int’l

This article first appeared (on Tuesday) on TCPAland and is republished here with permission. You will want to read it in conjunction with this other TCPA-related article by Eric Troutman, also fresh from the courts this week.

As soon as ACA Int’l was handed down, the debate began. Are predictive dialers still covered by the TCPA following ACA Int’l’s reversal of the FCC’s ATDS formulation or is the statute’s narrow definition now the law of the land?

The debate was sparked by the D.C. Circuit Court of Appeal’s express refusal to limit its review of the FCC’s ATDS craftsmanship to the 2015 TCPA Omnibus Ruling. Although the FCC had urged that Judge Srinivasan and co. lacked jurisdiction to evaluate the Commission’s earlier rulings regarding predictive dialers the D.C. Circuit disagreed, holding that “[w]hile the Commission’s latest ruling purports to reaffirm the prior orders, that does not shield the agency’s pertinent pronouncements from review.”  While that sounds pretty clear, after teeing up the issue the Court stopped short of expressly invalidating the earlier FCC orders while simultaneously stressing the inconsistency between the prior predictive dialer rulings and the FCC’s 2015 TCPA Omnibus ruling with respect to the functionalities of an ATDS. As you can tell, this ruling was more fun to unpackage than a new iPhone.

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