Federal Judges Expects Part of FCC TCPA Declaratory Ruling To Be Overturned

A U.S. District Court judge in Milwaukee granted Performant Technologies a stay Tuesday of a Telephone Consumer Protection Act-related lawsuit pending the outcome of various cases before federal courts of appeal. Judge Rudolph Randa commented on the FCC July declaratory ruling on the TCPA (see 1506180046). Randa said he agrees with Commissioners Ajit Pai and Mike O’Rielly, who raised concerns about how the FCC ruling interpreted the word capacity as spelled out in the TCPA. The FCC found that use of the term “capacity” in the definition of “automatic telephone dialing system,” doesn't exempt equipment that lacks the “present ability” to dial randomly or sequentially, Randa wrote. Pai said in dissenting from the ruling that the FCC “dramatically expands the TCPA’s reach,” Randa noted. According to Pai, the FCC found that the “TCPA prohibits a person from making ’any call’ to a mobile phone ’using any automatic telephone dialing system,’ except in certain defined circumstances,” Randa said. Randa said he granted Performant a stay because of the probability that finding won't survive legal challenge. “Thus, it seems to the Court, as it seemed to the dissenting Commissioners, that the majority’s interpretation of the term ‘capacity’ contradicts the plain language of the statute,” Randa wrote. The decision came in case no.13-C-1196.