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Williams v. Synchrony Bank

United States District Court, D. Kansas

September 26, 2017

VIRGINIA WILLIAMS, Plaintiff,
v.
SYNCHRONY BANK, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE.

         Plaintiff Virginia Williams brings this case against defendant Synchrony Bank for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 and the Kansas Consumer Protection Act (“KCPA”), K.S.A. § 50-623 et seq. Plaintiff claims that defendant used an automatic telephone dialing system (“ATDS”) to call her cell phone in an attempt to collect an alleged consumer debt. This matter is currently before the court on defendant's Motion to Stay Proceedings Pending Ruling by the D.C. Circuit Court of Appeals (Doc. 14). Defendant requests a stay pending the D.C. Circuit Court of Appeals' decision in ACA International v. Federal Communications Commission, Case No. 15-1211. For the reasons set forth, defendant's motion is denied.

         I. Background

         Plaintiff filed her complaint against defendant alleging that defendant called plaintiff “no less than two-hundred seventy-three (273) times” between June 21, 2016 and August 12, 2016. (Doc. 6, at 3.) Plaintiff claims that the few times she answered defendant's calls, she heard a pause before the collection agent began to speak, which indicated defendant was using an ATDS. In its answer, defendant noted it lacked “knowledge or information sufficient to form a belief” as to whether it used an ATDS to call plaintiff. (Doc. 11, at ¶ 19.)

         Defendant filed the present motion asking this court to stay the proceedings until the D.C. Circuit rules on ACA International v. Federal Communications Commission, Case No. 15-1211. At issue in ACA International is the Federal Communication Commission's (“FCC”) recent interpretation of the term “automatic telephone dialing system” within the TCPA.

         FCC Ruling

         An ATDS is defined under the TCPA 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.

47 U.S.C. §227. In 2003, the FCC ruled that predictive dialers fall within the statutory definition of an ATDS. In re the Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14093 (2003). A predictive dialer is described as “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.” Id. at 14091. This equipment also “has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.” Id.

         The FCC's ruling created confusion as to whether all predictive dialers meet the definition of an ATDS or whether only predictive dialers that have the present capacity to store or produce numbers for random or sequential number generation are prohibited. See Higgenbotham v. Diversified Consultants, Inc., No. 13-2624-JTM, 2014 WL 1930885, at *1 (D. Kan. May 14, 2014) (“Stated in another way, the question is ‘whether the dialing equipment's present capacity is the determinative factor in classifying it as an ATDS, or whether the equipment's potential capacity with hardware and/or software alterations should be considered, regardless of whether the potential capacity is utilized at the time the calls are made.'”). On July 10, 2015, the FCC issued a “Declaratory Ruling and Order” which clarified the meaning of “capacity” under the definition of an ATDS. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961 (2015). In its ruling, the FCC determined that the definition of capacity “does not exempt equipment that lacks the ‘present ability' to dial randomly or sequentially” and that because of Congress's intent to broadly define an ATDS, “any equipment that has the requisite ‘capacity' is an autodialer and is therefore subject to the TCPA.” Id. at 7974.

         Multiple parties filed petitions for review, arguing, generally, that this overly broad definition of “capacity” is arbitrary and capricious. (See, e.g., Doc. 16-1, at 4.) These petitions have been consolidated into the ACA International case which is currently pending before the D.C. Circuit. The case has been fully briefed, and arguments were held on October 19, 2016.

         II. Analysis

         Defendant requests a stay in the present case arguing the D.C. Circuit's decision-which would be binding on this court under the Hobbs Act, 28 U.S.C. §2342(1)-may directly impact plaintiff's case as ...


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