Collector - July 2020 - 43

IAF

PLOT TWIST:
WHAT'S AN ATDS NOW?
The magistrate judge's May 2018 order
granting partial summary judgement to
Reyes noted that the BCA's predictive
dialer drew from a list of numbers
provided by BCA's medical-provider
clients, which had obtained the numbers
(and consent to call) from the providers'
patients. According to the magistrate's
order, "the facts suggested" that the
predictive dialer, maintained by Noble
Systems, was "incapable of generating
random or sequential phone numbers."
That fact mattered because the TCPA
defines an ATDS as "equipment which has the
capacity to store or produce numbers to be
called, using a random or sequential number
generator; and to dial such numbers" (emphasis
added). Unfortunately, at the time Reyes filed
her complaint, a series of well-intentioned but
ill-considered FCC orders made clear that a
predictive dialer like the one that BCA had
used should be deemed an ATDS even though
it could not randomly or sequentially generate
the numbers to be called.
During the pendency of Reyes' claim,
however, and prior to the issuance of the
magistrate's partial summary judgment
order, the D.C. Circuit decided ACA
International v. FCC, which invalidated the
FCC's 2015 declaratory ruling that had-in
addressing many other issues-reiterated the
FCC's prior rulings that a predictive dialer
falls under the TCPA's definition of an ATDS
when it has the "capacity to store or produce,
and dial random or sequential numbers
... even if it is not presently used for that
purpose, including when the caller is calling
a set list of consumers." In the Matter of
Rules & Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 30 FCC Rcd.
7961 (2015) (emphasis added).
By the time Reyes came up on plaintiff 's
motion for summary judgment, at least
one district court, the District of Nevada,
had interpreted ACA International as an
explicit rejection of the FCC's "expansive

COLLECTOR 07.20

interpretation of the TCPA, particularly as
that definition pertained to systems that
may not, in fact, have the capacity to dial
randomly or sequentially." Marshall v. CBE
Group Inc., 2018 WL 1567852 (D. Nev.
2018). But that case, Marshall, was a click-todial case, and the Reyes court distinguished it
on that basis.
And so, ultimately, the magistrate in Reyes
felt himself bound by the FCC's prior orders
under the Hobbs Act and existing 11th
Circuit precedent, although he acknowledged
that "the ACA International case [had] given
the Court considerable pause."

DEUS EX MACHINA
At this point, from the outside, all hope
appeared to be lost in "Bad Reyes." The
magistrate had granted summary judgment
for Reyes on the ATDS issue. The court had
certified a class that included all individuals
whose accounts BCA had marked as
containing a "bad number." The parties
were embroiled in discovery disputes,
and BCA's interlocutory appeal had been
denied. In short, the future of the case
looked grim.
But then, in July 2019, a break in the
clouds: The court granted BCA's motion to
stay the case until the FCC promulgated a
revised definition of an ATDS, as had been
done with other ATDS cases then pending in
the Southern District of Florida.
And then, in January 2020, more good
news: The 11th Circuit issued an opinion in
Glasser v. Hilton Grand Vacations Company,
LLC, which held "that a device qualifies as an
autodialer only if it can "(1) store telephone
numbers using a random or sequential
number generator and dial them or (2)
produce such numbers using a random or
sequential number generator and dial them."
Because the 11th Circuit had issued this
decision, it bound the Southern District of
Florida in Reyes.
Two short months later, for reasons lost
to the shroud of a standard non-disclosure
provision, Reyes and BCA submitted a

joint motion to dismiss. The mediated
resolution suggests that ACA International
and its application in Glasser had held
some sway in Reyes-particularly in light
of the plaintiff 's significant "head-start"
on a favorable outcome in the case given
the grant of summary judgment and the
certification of the class-although the
actual effect of those decision on the Reyes
outcome cannot definitively be ascertained
from the record.

BEHIND THE SCENES: ACA'S
INDUSTRY ADVANCEMENT FUND
ACA International, through its judicial
committee, awarded BCA funding
from its Industry Advancement Fund
(IAF) to supplement its defense in
Reyes. Additionally, ACA had approved
amicus support from the IAF for the
interlocutory appeal that BCA attempted
to raise, although that appeal never came
to fruition. Perhaps most importantly-
and admitting that it can be difficult to
measure-ACA's prior judicial advocacy
efforts, which were similarly supported in
whole or in part by IAF resources, appear
to have had a trickle-down effect on this
case. Even if not evident in any opinion
issued that the Reyes court issued, the
posture of the case and sudden negotiated
resolution in the wake of Glasser-itself
spawned by ACA International -strongly
implies that ACA's prior judicial advocacy
efforts affected the outcome in Reyes.
ACA commends BCA for its robust
defense of its actions in this case, which did
not appear to violate the letter of the TCPA
as interpreted by ACA International and
Glasser, and which certainly did not violate
the spirit of the TCPA. Additionally, ACA
would acknowledge the contributions of
ACA attorney members Skip Kohlmeyer
and Dale Golden made in representing
BCA in this case.
Colin Winkler is ACA International's
corporate counsel.

43



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