319 F. Supp. 3d 927
E.D. Ill.2018Background
- Plaintiff Binyamin Pinkus sued Sirius XM under the TCPA, alleging >100 calls to his cellphone were made using an ATDS and prerecorded voice messages.
- Sirius brought third-party claims against telemarketing vendors; some third-party claims were dismissed or voluntarily withdrawn. The case was partially stayed pending ACA International.
- Pinkus amended his complaint after ACA International and alleged the calls used "predictive dialing" (no CSR on answer, delay before live agent connects).
- Sirius moved under Rule 12(c) for partial judgment on the pleadings, arguing Pinkus failed to plausibly allege an ATDS as defined by the TCPA post-ACA International.
- The court considered statutory text, FCC orders (1992, 2003, 2008, 2015), and ACA International (D.C. Cir.) and concluded ACA International invalidated the FCC rulings’ broad reading of ATDS.
- Holding: Pinkus's ATDS claim dismissed for failing to plausibly allege the device had the capacity to generate random or sequential telephone numbers and then dial them; prerecorded-voice claim may proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a predictive dialer that dials from stored lists qualifies as an ATDS under 47 U.S.C. § 227(a)(1) | Pinkus: the statute’s phraseing allows a device that can "store" numbers (e.g., list-based predictive dialer) to be an ATDS; FCC rulings (2003/2008) support that predictive dialers qualify even if they don't generate numbers | Sirius: After ACA Int'l the FCC’s expansive rulings are not controlling; an ATDS must have capacity to generate random or sequential numbers and then dial them, which list-based predictive dialers lack | Court: ACA Int'l invalidated the FCC’s broad interpretation; statutory text requires capacity to generate random or sequential numbers and then dial them; list-based predictive dialer allegations insufficient — ATDS claim dismissed |
Key Cases Cited
- ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (invalidated FCC’s expansive 2015 ATDS interpretation and held agency applied inconsistent definitions)
- Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018) (interprets ATDS to require capacity to generate random or sequential numbers and then dial them)
- CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443 (7th Cir. 2010) (Hobbs Act review of FCC orders vests exclusive jurisdiction in the court of appeals)
- Peck v. Cingular Wireless, LLC, 535 F.3d 1053 (9th Cir. 2008) (district courts bound by unchallenged FCC orders under Hobbs Act)
- Sessions v. Barclays Bank Del., 317 F. Supp. 3d 1208 (N.D. Ga. 2018) (similar post-ACA analysis that courts must reassess ATDS scope after D.C. Circuit’s decision)