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Pinkus v. Sirius Xm Radio, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 26, 2018

BINYAMIN PINKUS, Plaintiff,
v.
SIRIUS XM RADIO, INC., Defendant/Third-Party Plaintiff,
v.
THE RESULTS COMPANIES LLC, CAREER HORIZONS, INC. d/b/a TELESERVICES DIRECT, and iPACESETTERS LLC, Third-Party Defendants.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman Judge

         Binyamin Pinkus alleges that Sirius XM Radio, Inc. violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, by causing over one hundred calls to be placed to his cell phone using an automated telephone dialing system (“ATDS” or “autodialer”), and also by using prerecorded voice messages on those calls. Doc. 105. Sirius brought third-party claims against several telemarketing service providers, Doc. 8, three of which remain in the case, Docs. 73, 103 (voluntarily dismissing two providers); Docs. 81-82 (reported at 255 F.Supp.3d 747 (N.D. Ill. 2017)) (dismissing one provider for forum non conveniens). The case was partially stayed for some time pending the D.C. Circuit's resolution of ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), which reviewed a 2015 Federal Communication Commission (“FCC”) order addressing the features that equipment must have to qualify as an ATDS under the TCPA. Doc. 73. After ACA International was issued, Pinkus was given leave to and did file an amended complaint. Docs. 104, 105. Sirius now moves under Civil Rule 12(c) for partial judgment on the pleadings, contending that Pinkus has not alleged facts sufficient to make it plausible that an ATDS was used to make the calls he received. Doc. 108. The motion is granted.

         Background

         As on a Rule 12(b)(6) motion, the court on a Rule 12(c) motion assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See St. John v. Cach, LLC, 822 F.3d 388, 389 (7th Cir. 2016); Adams v. City of Indianapolis, 742 F.3d 720, 727-28 (7th Cir. 2014). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, ” along with additional facts set forth in Pinkus's brief opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted); see also N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998). The facts are set forth as favorably to Pinkus as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at this stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).

         A. Statutory and Regulatory Landscape

         As relevant here, the TCPA prohibits “mak[ing] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any [ATDS] … to any telephone number assigned to a … cellular telephone service … .” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA defines an ATDS 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). The FCC has the authority to promulgate regulations implementing the TCPA. See ACA Int'l, 885 F.3d at 693. Regulations that the FCC promulgated in 1992 adopted, without elaboration, the statutory definition of ATDS. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“1992 Order”), 7 FCC Rcd. 8752, 8792 App'x B (1992) (amending 47 C.F.R. § 64.1200).

         New FCC regulations promulgated in 2003 interpreted the term ATDS to include a “predictive dialer, ” meaning “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.” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“2003 Order”), 18 FCC Rcd. 14014, 14091-93 ¶¶ 131-133 (2003). As the Commission explained, a predictive dialer consists of “hardware” that, “when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.” Id. at 14091 ¶ 131. Telemarketers using predictive dialing software “program the numbers to be called into the equipment, and the dialer calls them at a rate to ensure that when a consumer answers the phone, a sales person is available to take the call.” Ibid. Thus, the Commission noted, “[t]he principal feature of predictive dialing software is a timing function, not number storage or generation.” Ibid.

         The 2003 Order observed that, “[i]n the past, telemarketers may have used dialing equipment to create and dial 10-digit telephone numbers arbitrarily.” Id. at 14092 ¶ 132. The Commission came to believe, however, that “to exclude … equipment that use[s] predictive dialing software from the definition of [ATDS] simply because it relies on a given set of numbers”-rather than generating the numbers itself-“would lead to an unintended result.” Id. at 14092 ¶ 133. According to the Commission, Congress could not have intended for it to be “permissible” to make calls to “wireless numbers … when the dialing equipment is paired with predictive dialing software and a database of numbers, but prohibited when the equipment operates independently of such lists and software packages.” Ibid.

         To support its position, the FCC stated that the TCPA's definition of ATDS “contemplates autodialing equipment that either stores or produces numbers, ” and also that it encompasses all “equipment” with the “‘capacity to store or produce telephone numbers.'” Id. at 14092 ¶ 132 (first two emphases added) (quoting 47 U.S.C. § 227(a)(1)). By enacting this broad definition of ATDS, the FCC added, “Congress anticipated that the FCC, under its TCPA rulemaking authority, might need to consider changes in technologies.” Ibid. As the FCC saw it, Congress's primary purpose in enacting the TPCA was “to alleviate a particular problem-an increasing number of automated and prerecorded calls to certain categories of numbers.” Id. at 14092 ¶ 133. This purpose was significant, the FCC asserted, because “the evolution of the teleservices industry has progressed to the point where using lists of numbers is far more cost effective” than the past practice of “us[ing] dialing equipment to create and dial 10-digit telephone numbers arbitrarily.” Id. at 14092 ¶ 132. For these reasons, the FCC concluded that “a predictive dialer falls within the meaning and statutory definition of [ATDS] and the intent of Congress.” Id. at 14093 ¶ 133.

         Five years later, in 2008, the FCC affirmed the 2003 Order in this respect. See In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“2008 Declaratory Ruling”), 23 FCC Rcd. 559, 566 ¶ 12 (2008). The Commission noted that the 2003 Order “found that, based on the statutory definition of [ATDS], the TCPA's legislative history, and current industry practice and technology, a predictive dialer falls within the meaning and definition of autodialer and the intent of Congress.” Id. at 566 ¶ 13. Although a party to the 2008 proceeding urged the FCC to find that a “predictive dialer meets the definition of autodialer only when it randomly or sequentially generates telephone numbers, not when it dials numbers from customer telephone lists, ” id. at 566 ¶ 12 (emphasis added), the Commission disagreed, stating that nothing presented by the party “warrant[ed] reconsideration of [the 2003] findings.” Id. at 567 ¶ 14.

         The FCC in 2015 again reaffirmed the 2003 Order's ruling “that predictive dialers, as previously described by the Commission, satisfy the TCPA's definition of ‘autodialer.'” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (“2015 Declaratory Ruling”), 30 FCC Rcd. 7961, 7972 ¶ 10 (2015). The reason, the Commission stated, was that it found “troubling that predictive dialers, like dialers that utilize random or sequential numbers instead of a list of numbers, retain the capacity to dial thousands of numbers in a short period of time.” Id. at 7973 ¶ 14. According to the Commission, the TCPA's “unqualified use of the term ‘capacity, '” which encompasses “equipment that lacks the ‘present ability' to dial randomly or sequentially” but that can be configured to do so, necessarily means that the definition of an ATDS covers all predictive dialers, even those that simply dial numbers from customer telephone lists without randomly or sequentially generating the numbers. Id. at 7974 ¶ 15; see also id. at 7971-72 ¶ 10; In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 15391, 15392 ¶ 2 n.5 (2012) (“The Commission has emphasized that [the] definition [of ATDS] covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.”).

         B. Pinkus's Allegations

         Pinkus claims that Sirius violated the TCPA by, among other things, by causing over one hundred calls to be placed to his cell phone using an ATDS. Doc. 105 at ¶¶ 9-23. He alleges that the calls were placed “using ‘predictive dialing' technology, which automatically places calls without human intervention until the called party answers the call, at which time such automatic dialer attempts to connect the called party.” Id. at ¶ 18; see also id. at ΒΆ 19 (alleging further that no customer service representative was on the line when he answered the calls, and that he would experience a delay after answering until a representative began speaking). As Pinkus acknowledged at the hearing on this motion, Doc. 125, this claim rests on the premise that, as the FCC ruled in the 2003 ...


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