The saga continues in the post-ACA Int’l fight over ATDS functionality. Eric described Bad Reyes as the Empire Strikes Back. If that’s the case then that makes Marshall A New Hope, and Herrick the Return of the Jedi.  Now we’ve got the next movie in the series, and we’ve got a prequel on our hands.

Just a few moments ago, Judge David Proctor in the Northern District of Alabama adopted a Magistrate Judge’s report and recommendation to grant partial summary judgment on the issue of whether Defendant’s system is an ATDS, ruling that that the FCC’s 2003 predictive dialer ruling “still stands”. Swaney v. Regions Bank, No. 2:13-cv-00544-JHE, 2018 U.S. Dist. LEXIS 85217, at *2 (N.D. Ala. May 22, 2018). The court reasoned that while the D.C. Circuit invalidated “certain portions” of the FCC’s 2015 order, it did not invalidate the portion of the order reaffirming the FCC’s 2003 determination that “while some predictive dialers cannot be programmed to generate random or sequential phone numbers, they still satisfy the statutory definition of an ATDS.” Id. at *3.  According to the court, the “primary consideration” under the 2003 order is “whether human intervention is required at the point in time at which the number is dialed.” Id.  And the evidence in that case showed that the Defendant’s system lacked such human intervention.  Id.

As this next episode clearly demonstrates, courts are now coming out in all different directions on the issue of ATDS functionality.  The count so far is two holding that the D.C. Circuit invalidated the FCC’s prior pronouncements (Marshall and Herrick), and two holding the exact opposite (Bad Reyes, and now Swaney).  This makes the necessity of seeking primary jurisdiction stays all the more compelling.  Let’s give the FCC a chance to sort this all out before this rampant inconsistency in the law continues to develop in TCPAland.