The Defendant in Bad Reyes is going to have to wait to appeal the court’s ruling on ATDS functionality.

Recall that Estrellita Reyes v. Bca Fin. Svs. (aka “Bad Reyes“) is part III in our post-ACA Int’l ATDS functionality saga.  Following the court’s ruling – which found that the FCC’s 2003 and 2008 predictive dialer rulings remained valid following ACA Int’l – the Defendant asked the court to certify its ruling for immediate interlocutory appeal to the Eleventh Circuit.  The court recently denied that motion, finding that the case did not meet the three conditions required for certification:  (1) a “controlling question of law”; (2) a “substantial ground for difference of opinion” as to that question of law; and (3) that an appeal must “materially advance the ultimate termination of the litigation.”

But before we get into the court’s analysis, there’s one thing to note.  The decision opens with the comment that the motion had been filed because the Defendant was “unhappy” with the court’s ruling.  Well, who wouldn’t be?  But Defendant’s emotions aside, that pretty much set the tone for the rest of the ruling in which the court shot down each argument made by Defendant in seeking certification.

First, the court ruled that the mere fact that Defendant disagreed with the court’s ruling establishes neither a controlling question of law, nor a substantial ground for difference of opinion.

Second, the court ruled that the fact there are other district courts that have reached different conclusions (i.e. Marshall and Herrick) didn’t matter because those were non-binding, out-of-circuit authorities – and that decisions by courts within the Eleventh Circuit were in alignment.

Third, the court ruled that the appeal would not “materially advance the ultimate termination of the litigation” because, even assuming the Eleventh Circuit reversed, the case would still need to go to trial.  The parties would still need to litigate the issue of whether the device used by Defendant was an ATDS (granted, under the statutory text of the TCPA, rather than the FCC rulings), and – here’s the kicker – it wouldn’t matter anyway because Defendant itself had not moved for summary judgment on the issue (hence the appeal would only result in a reversal of the court’s ruling on Plaintiff’s summary judgment motion).

Defendant came out 0 for 3 here but, no doubt, the bar for certifying a ruling for interlocutory appeal is high.  But query: should it really be a Circuit Court of Appeal that decides this issue of ATDS functionality?  Or should it be left to the FCC?  If anything, Worse Reyes might very well be the poster child for primary jurisdiction stays in TCPA cases.