As promised, we are continuing to keep a close eye on the certified TCPA class action case out of the Southern District of California, O’Shea v. American Solar Solution, Inc. And as expected, the inconsistent decisions on the definition of ATDS continue to spread like wildfire here in TCPAland.

The court in O’Shea denied Defendant’s ex parte motion for leave to file a second motion for summary judgment on grounds that Defendant’s ViciDial predictive dialer was an ATDS. In reaching this decision, the court relied on the 2003 and 2008 FCC Orders for the position that “a predictive dialer is an ATDS.” O’Shea at *2.

Defendant argued that ACA Int’l changed the definition of an ATDS such that Defendant’s ViciDial predictive dialer no longer triggers it. However, the court shot down Defendant’s argument and found that the “ACA decision left intact the holding of both the FCC’s 2003 and 2008 Order that an autodialer is an ATDS.” Id. The court cited none other than our favorite Bad Reyes and Swaney for this proposition.

Also, in reaching its decision, the court focused on the issue of “capacity” rather than examining ACA’s analysis of ATDS functionality. The court noted that ACA was not helpful to Defendant because Plaintiff had not argued that Defendant’s dialer was an ATDS because it could be configured with autodialing functions. Rather, Plaintiff had undisputed evidence that the dialer was presently configured as a predictive dialer.

As O’Shea has showed us, the varying decisions on the FCC’s predictive dialer rulings continue to pile up. Are we still keeping score? Looks like the count is now 8-3.