371 F. Supp. 3d 26
D.D.C.2019Background
- Plaintiffs Davila‑Lynch and Gonzalez (Mass. residents) alleged they received multiple telemarketing calls on their cell phones from Horizon Solar and third‑party callers (Flowmedia, TMI), some with prerecorded messages or "click-and-pause" sounds.
- Plaintiffs filed a putative class action asserting (1) TCPA violations (calls made using an ATDS) and (2) Mass. Gen. Laws ch. 93A unfair/deceptive‑practice claim (Count Two against Horizon and Flowmedia).
- Horizon moved to dismiss under Rule 12(b)(6) arguing the devices used did not qualify as an ATDS and that plaintiffs pleaded only conclusory ATDS allegations; Flowmedia later filed a bankruptcy suggestion, staying proceedings as to it.
- Central legal question: the statutory ATDS definition—whether equipment must itself be capable of generating random or sequential numbers, or whether dialing from a stored list (numbers generated elsewhere) suffices.
- The court assumed the parties’ agreement that ACA International (D.C. Cir.) is binding and analyzed post‑ACA authority; it concluded the TCPA definition is ambiguous but adopted the view that an ATDS need only (a) store numbers and dial them or (b) produce numbers by a random/sequential generator and dial them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether device must itself generate random/sequential numbers to be an ATDS | ATDS need only be able to dial stored lists (numbers may be generated elsewhere) | ATDS must itself have capacity to generate random or sequential numbers | Court adopted Marks view: phrase modifies "produce" only; device qualifies if it can store and dial numbers or produce numbers via a generator and dial them (denies dismissal) |
| Effect of ACA Int'l on FCC rulings | Plaintiffs: ACA Int'l invalidates only 2015 FCC order but earlier rulings can still inform | Horizon: ACA Int'l undermines FCC guidance such that ATDS definition requires stricter reading | Court: Need not decide scope of ACA's invalidation; outcome same—equipment that dials from stored lists can be an ATDS |
| Sufficiency of pleadings that an ATDS was used | Plaintiffs relied on indirect facts (clicks/pauses; prerecorded messages; scripted pitches; frequency of calls; alleged use of specific dialers) to infer ATDS use | Horizon: allegations are conclusory and bare, lacking detail to plausibly show ATDS use | Court: Allegations for Davila‑Lynch (clicks, prerecorded message) and Gonzalez (specific dialer names, call frequency, scripted pitch) are sufficient to plausibly infer ATDS use; claims survive dismissal |
| Chapter 93A claim — injury requirement | Plaintiffs: TCPA violation qualifies as Chapter 93A violation under AG regulation and plaintiffs suffered charges, intrusion, and annoyance | Horizon: statutory violation alone insufficient; Chapter 93A requires distinct economic injury | Court: Denies dismissal as to Chapter 93A but limits recoverable theory to plausible economic injury (charges incurred); non‑economic annoyances insufficient |
Key Cases Cited
- ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir.) (invalidating the FCC's 2015 ATDS interpretation and finding the FCC's position unclear)
- Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir.) (holding that dialing from stored lists can constitute use of an ATDS)
- Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir.) (addressing present capacity of equipment to perform autodialing functions post‑ACA Int'l)
- Thompson‑Harbach v. USAA Fed. Sav. Bank, 359 F. Supp. 3d 606 (N.D. Iowa) (textual analysis finding the modifying phrase applies to both "store" and "produce")
- Shaulis v. Nordstrom, Inc., 865 F.3d 1 (1st Cir.) (Chapter 93A requires plaintiff to plead and prove distinct injury or harm beyond statutory violation)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. Supreme Court) (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. Supreme Court) (pleading standard: courts assume truth of well‑pleaded facts and draw reasonable inferences)