But the Ramos case quickly and decisively sides with the “yes they survived” camp– “The ACA decision invalidated portions of the 2015 Order, but left intact the FCC’s prior orders.” Ramos at *15. The courts have struggled mightily with this issue. The first stage of the court’s analysis–as it always seems to be nowadays–was determining whether the FCC’s 20 Predictive Dialer Rulings remain viable post ACA Int’l. And so the battle lines were clearly fixed.
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The Defendant argued that the texts were sent with sufficient manual (human) intervention to remove the text platform from TCPA coverage. The Plaintiff argued that the text messages were sent using an automated text message platform without consent. 16, 2018) Magistrate Judge Barry Seltzer faced cross-motions for summary judgment related to text messages advertising a sale of Pandora jewelry. Last Thursday, TCPAland received its latest ruling on the subject when a district court in Florida held that the “human intervention” functionality requirement embedded within the 2003 FCC Predictive Dialer ruling survived ACA Int’l, dooming Plaintiff’s TCPA claims related to a bulk text message campaign that included certain manual elements.
First, did the FCC’s 20 Predictive Dialer Rulings survive ACA Int’l? If so, how do those rulings–especially the human intervention discussion–apply in non-predictive dialer cases? And more specifically, when in the process of the completion of a call does the human intervention need to take place? (“ATDS.”) Although the FCC is set to issue a definitive ruling on this subject following its Public Notice on the TCPA, courts appear reluctant to stay cases and wait FCC guidance and have elected to go it alone despite considerable uncertainty on the subject. As TCPAland residents know well by now, the decision in ACA Int’lhas left courts searching for direction on how best to apply the Telephone Consumer Protection Act’s (“TCPA”) definition of automated telephone dialing system.
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