A federal judge from the Southern District of Florida agreed to stay a case alleging that Me Bath Spa Experience, LLC violated the TCPA pending a resolution of ACA International v. Federal Communications Commission by the D.C. Circuit Court of Appeals.  ACA International is a significant appeal challenging several aspects of the FCC’s 2015 Omnibus TCPA Order, which we have written about previously 

According to the trial court’s decision in Bilal Saleh v. Me Bath Spa Experience, LLC, which was released this week, a stay is warranted because the appropriate scope of the term “automatic telephone dialing system” (ATDS) is in dispute.  The Court notes that, in 2015 the FCC “issued a ruling in which it defined ATDS broadly to include equipment with the ‘potential ability’ to hold or store telephone numbers and rejected a definition that would interpret the word ‘capacity’ to mean ‘current capacity’ or ‘present ability.’”  Therefore, awaiting the D.C. Circuit’s ruling on the appeal of the 2015 decision is appropriate because “the D.C. Circuit will consider the question of whether the FCC ‘interpreted ATDS in a way that unlawfully turns on the equipment potential rather than present abilities, nullifies the statutory random-or-sequential-number-generation requirement, and provides inadequate guidance to regulated parties.’”

According to the trial court, a temporary stay of the case was feasible because the stay is expected to be brief.  According to the trial, the decision from the D.C. Circuit in ACA International is “imminent.” 

While this Court cannot determine with certainty when the D.C. Circuit will issue its opinion, Defendant directs the Court to statistics for last five years revealing the median time for the issuance of an opinion by the D.C. Circuit. The most recent statistics compiled by the United States Courts in September of 2017 reveal that the D.C. Circuit's median time from the filing of a notice of appeal until the disposition of the appeal was 11.9 months. The D.C. Circuit heard oral argument in ACA International fifteen months ago on October 19, 2016. This does not account for the number of months the appeal was fully briefed and pending prior to oral argument. Given the median timeframe for the D.C. Circuit's issuance of opinions and the length of time the appeal has been fully briefed with the benefit of oral argument, this Court concludes that a decision is imminent and any stay of these proceedings is likely to be brief.

Like the federal court in Florida, we have noted the D.C. Circuit’s long delay in issuing its decision in ACA International, but anticipate that a decision will be handed down any day now.  If you would like to be among the first to know when the decision is released and understand how it will impact your business, be sure to preregister now for the webinar, which we will co-host with Contact Center Compliance, the next business day after the opinion is released. 


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Date: Next business day after the D.C. Circuit opinion is released

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