In Gonzalez v. Ocwen Loan Servicing, LLC, No. 5:18-cv-340-Oc-30PRL, 2018 WL 4217065 (M.D. Fla. Sept. 5, 2018), the Middle District of Florida determined that the D.C. Circuit’s opinion in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) [hereinafter “ACA“], vacated the Federal Communications Commission’s (“FCC”) 2003, 2008, and 2015 Orders interpreting the definition of an automatic telephone dialing system (“ATDS”).

The plaintiff, Wilfredo Gonzalez (“Plaintiff”), alleged that Ocwen Loan Servicing, LLC (“Ocwen”) used an ATDS to place approximately 500 calls to his cell phone. See id. at *1. Plaintiff further alleged that the calls continued even after he revoked his consent for Ocwen to call him on his cell phone. See id. Plaintiff claimed that these calls violated the Telephone Consumer Protection Act (“TCPA”), which generally prohibits calls made using an ATDS unless the recipient has provided prior express consent. See generally 47 U.S.C. § 227.

Ocwen moved to dismiss Plaintiff’s complaint on the grounds that ACA invalidated the ATDS definition the FCC had promulgated in its 2003, 2008, and 2015 Orders. See generally Gonzalez, 2018 WL 4217065. Ocwen further contended that, since the 2003, 2008, and 2015 Orders had been vacated, the 1992 FCC Order applied. See id. at *2. Plaintiff, on the other hand, argued that ACA only vacated the 2015 Order and left the 2003, 2008, and 2012 Orders intact. See id.

The Middle District of Florida concluded:

ACA . . . vacated the FCC’s 2015 Order in two relevant ways . . . : it vacated the FCC’s interpretation of what it means for a device to have the capacity to function as an ATDS, and vacated the FCC’s interpretation that an autodialer was required and not required to be able to generate random or sequential telephone numbers and dial them.

Id. at *5. Agreeing with Ocwen, the court further determined ACA vacated the FCC’s 2003, 2008, and 2015 Orders. See id. The court found that the D.C. Circuit’s opinion was binding on all circuits, including the Middle District of Florida. See id. The court further explained that “the D.C. Circuit tackled head on the issue of whether it could review the FCC’s interpretation of what devices should be considered ATDSs—regardless of when the FCC first applied the definition.” Id. at *6. By reviewing and vacating the ATDS definition in the 2015 FCC Order, “the D.C. Circuit necessarily vacated the [ATDS] definition in the [2003 and 2008] FCC Orders that the 2015 Order merely reaffirmed.” Id. The court, therefore, applied the definition of ATDS provided in the TCPA statute. See id.

Upon review of the TCPA’s definition, the court concluded that “an ATDS would not include a predictive dialer that lacks the capacity to generate random or sequential telephone numbers and dial them, but it would include a predictive dialer that has that capacity.” Id. The court further elucidated that because ACA found “interpreting capacity to mean a device with a ‘future possibility’ of having those functions is too expansive,” a device only has “the capacity to generate random or sequential numbers” if it “has the ‘present ability’ to do so.” Id. (citing ACA, 885 F.3d at 695‒97.). Additionally, the court determined that a predictive dialer can be an ATDS if it “ha[s] the capacity to generate random or sequential telephone numbers and dial them.” Id. Thus, the Middle District of Florida has added another case to the growing list of decisions finding that ACA vacated the 2003, 2008, and 2015 FCC Orders.

Nonetheless, the court found that Plaintiff sufficiently stated a claim under the TCPA. See generally id. The court explained “any allegation that a caller used a device that could have the present ability to generate random or sequential telephone numbers . . . is sufficient to satisfy a plaintiff’s pleading requirements in TCPA cases. Id. at *7.

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