Maes v. Charter Commc'n

• Decision Date: 30 October 2018
• Docket Number: 18-cv-124-jdp
• Citation: 345 F.Supp.3d 1064
• Parties: Mitchell MAES, Plaintiff, v. CHARTER COMMUNICATION d/b/a Spectrum Cable and Does 1-10, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

345 F.Supp.3d 1064

Mitchell MAES, Plaintiff,

v.CHARTER COMMUNICATION d/b/a Spectrum Cable and Does 1-10, Defendants.

18-cv-124-jdp

United States District Court, W.D. Wisconsin.

Signed October 30, 2018

Amy L. Cueller, Lemberg Law, LLC, Wilton, CT, for Plaintiff.

Jessica D. Gallegos, Kabat Chapman & Ozmer LLP, Atlanta, GA, for Defendants.

OPINION and ORDER

JAMES D. PETERSON, District Judge

Plaintiff Mitchell Maes alleges that defendant Charter Communication repeatedly called him using an autodialer in violation of the Telephone Consumer Protection Act (TCPA). Dkt. 1. Defendants move to dismiss Maes's claim under Federal Rule of Civil Procedure 12(b)(6), contending that Maes has not alleged facts sufficient to show that Charter used an autodialer. Dkt. 9.

This case raises an interesting question regarding which definition of autodialer the court should apply. The term autodialer is defined in both the TCPA itself and through rules promulgated by the Federal Communications Commission. The FCC's most recent definition comes from a 2015 order, but earlier this year that definition was struck down by the Court of Appeals for the D.C. Circuit in ACA International v. FCC , 885 F.3d 687 (D.C. Cir. 2018). Since then, courts have disagreed about whether the scope of ACA International is limited the 2015 FCC order or also applies to prior FCC rulings from 2003, 2008, and 2012. Because Maes's allegations are based on a definition of autodialer promulgated by the FCC in 2003, Charter contends that his claim fails if the 2003 order is no longer valid.

After reviewing ACA International and the decisions interpreting it, the court concludes that the 2003 FCC order is still valid, and it will deny Charter's motion to dismiss. Nothing in ACA International indicates that the court of appeals intended to strike down the 2003 order. Applying the definition of autodialer promulgated in the 2003 order, the court finds that Maes plausibly alleges that Charter used an autodialer.

ALLEGATIONS OF FACT

The court draws the following facts from Maes's complaint, Dkt. 1, and accepts them as true for the purpose of deciding Charter's motion. Zahn v. N. Am. Power & Gas, LLC , 815 F.3d 1082, 1087 (7th Cir. 2016).

Around August 2017, Charter began calling Maes on his cell phone. Charter's representatives told Maes that they were attempting to collect debt from a person named "Nancy." Maes is not Nancy, and he said so to Charter's representatives. Maes asked Charter to stop calling him. Despite Maes's request, Charter continued to call Maes. Maes does not state how many times Charter called him, but he alleges that he told multiple Charter representatives that he wanted the calls to stop and that Charter ignored his request.

Charter called Maes using a predictive dialer, a piece of equipment used in call centers to automatically dial phone numbers and connect representatives to customers that answer the phone. Maes states that when he answered phone calls from Charter, he heard dead air before the phone system connected him with a representative.

ANALYSIS

Maes is suing Charter under 47 U.S.C. § 227(b)(1)(A)(iii), which prohibits making "any call ... using any automated telephone dialing system ... to any telephone number assigned to a ... cellular telephone service." The sole question raised in Charter's motion to dismiss is whether Maes has adequately alleged that Charter used an "automatic telephone dialing system," or autodialer, to call him. This question has two parts. First, the parties debate what an "automatic telephone dialing system" is. Charter says that the controlling definition is provided in the statute; Maes says that the court is bound by broader definitions found in FCC orders. Second, Charter contends that Maes does not allege facts sufficient to plausibly suggest that Charter used any type of automatic dialing equipment. The court will consider each argument in turn.

A. Definition of "automatic telephone dialing system"

1. Statutory and regulatory definitions

The TCPA defines "automated telephone dialing system" as "equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." Id. § 227(a)(1). Charter contends that Maes cannot meet this definition of autodialer because he does not allege that Charter used a device that has the capacity to dial "random or sequential" phone numbers.

Maes contends that under the FCC's interpretation of the statute, he does not have to show that Charter's device dialed "random or sequential" numbers. The general rule is that courts are bound by the FCC's interpretation of the TCPA, even if the court believes that the agency's interpretation is clearly wrong. 28 U.S.C. § 2342(1). District courts have no authority to invalidate an FCC order, but a federal appellate court can do so under limited circumstances. 28 U.S.C. § 2344 ; see also Blow v. Bijora, Inc. , 855 F.3d 793, 802 (7th Cir. 2017).

Maes relies on a 2003 order in which the FCC ruled that the TCPA's regulation of autodialers included any device that is a "predictive dialer," which is "equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls." Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 18 FCC Rcd. 14014, 14091–93 ¶¶ 131-33 (2003). These devices can be identified by the person answering the phone, because they sometimes result in a moment of silence before the person is connected with a telemarketer. Id. , ¶ 8 n.31. The FCC recognized that not all predictive dialers have the capacity to dial random or sequential numbers, but it reasoned that Congress intended for the TCPA to adapt to changes in technology. Id. , ¶ 132. Telemarketers in the past may have used equipment to create and dial arbitrary 10-digit numbers, but it is now far more cost effective for telemarketers to use curated lists of numbers. Id. Nevertheless, even as the technology evolved, the basic function remained the same—the capacity to dial numbers without human intervention. Id. Thus, a device may qualify as an autodialer even if it does not generate random or sequential numbers. The FCC reaffirmed this order in 2008 and 2012. Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 23 FCC Rcd. 559, 566 ¶¶ 12–14. (2008) ; Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 27 FCC Rcd. 15391, 15399 n.5 (2012).

2. ACA International

The FCC considered the definition of an autodialer again in 2015. Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 30 FCC Rcd. 7961 (2015). The court of appeals for the D.C. Circuit vacated the definition of autodialer found in the 2015 order in ACA International v. FCC , 885 F.3d 687 (D.C. Cir. 2018). The parties to this case agree that ACA International is binding on this court. See Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc. , 863 F.3d 460, 467 (6th Cir. 2017) ; Pinkus v. Sirius XM Radio, Inc. , 319 F.Supp.3d 927, 932 (N.D. Ill. 2018). But they disagree whether ACA International also invalidated the 2003 FCC definition of autodialer that Maes relies upon.

In ACA International , the court of appeals reasoned that the statutory definition of autodialer raised two questions: (1) when does a device have the "capacity" to perform the two enumerated functions; and (2) what precisely are those functions? ACA Int'l , 885 F.3d at 695. It struck down the FCC's treatment of both questions.

First, the court held that the FCC unreasonably interpreted the meaning of the word "capacity" in § 227(a)(1). ACA Int'l , 885 F.3d at 698. Because the 2015 order used a definition of capacity not found in prior orders, this portion of the court's ruling is not relevant to the validity of the 2003 definition.

Second, the court found that the FCC's description of the functions of an autodialer in the 2015 order was contradictory. On the one hand, the FCC ruled that to qualify as an autodialer, equipment must have the capacity to generate and dial random or sequential numbers. Id. at 701–02. But at the same time, the FCC reaffirmed its prior rulings on predictive dialers, and those prior rulings had unequivocally held that a predictive dialer falls under the statute even if it cannot be programmed to generate random or sequential numbers. Id. at 702. The court explained that although either interpretation of the statute may be correct, the FCC could not choose both at the same time:

So which is it: does a device qualify as an ATDS only if it can generate random or sequential numbers to be dialed, or can it so qualify even if it lacks that capacity? The 2015 ruling, while speaking to the question in several ways, gives no clear answer (and in fact seems to give both answers). It might be permissible for the Commission to adopt either interpretation. But the Commission cannot, consistent with reasoned decisionmaking, espouse both competing interpretations in the same order.

Id. at 702–03.

In the short time since ACA International was decided, many courts have considered the question whether the decision implicitly invalidated the 2003 order. Some courts have held that ACA International left the FCC's prior rulings intact.¹ About the same number of courts have held the opposite.² Having reviewed all these decisions, this court is persuaded that the prior FCC rulings are still valid.

According to ACA International , the flaw in the 2015 ruling was not that it reaffirmed the 2003 order, but that it both reaffirmed the 2003 order and contradicted it. The court of appeals rightfully held that the FCC could not issue contradictory orders. But the court of appeals explicitly stated that it was not ruling on which interpretation of the TCPA was correct, so it is not reasonable to infer that it was reaching back and invalidating all prior FCC orders that expressed a particular interpretation of...