Earlier this week the Third Circuit gave TCPAland a blockbuster ruling in Dominguez II holding that Yahoo!’s instant messenger platform was not an ATDS because it lacked the functionality to randomly or sequentially generate numbers and dial them. But the debate over the viability of the FCC’s 2003 and 2008 predictive dialer rulings rages on.

Two new district courts have weighed in this week. And, not surprisingly, they reach different outcomes.

First, in Sessions v. Barclays Bank Delaware, Civ. Action No. 1:17-CV-01600-LMM, 2018 WL 3134439 (N.D. GA June 25, 2018) Judge May ruled that ACA Int’l invalidated all of the FCC’s prior ATDS rulings. After acknowledging that “courts are divided” on the subject, the Sessions court concluded that ” Contrary to the pronouncement of the [Bad] Reyes court, the D.C. Circuit clearly held that it invalidated all of the FCC’s pronouncements as to the definition of “capacity” as well as its descriptions of the statutory functions necessary to be an ATDS.” Sessions at *4. The Court went on to find that the question of whether a predictive dialer fits the definition of an ATDS is a “difficult question of statutory interpretation” and strongly suggested it was best for the FCC to resolve the issue. See Sessions at *5.

The next day, however, a court in Tennessee reached a diametrically opposite result. As I am involved with the case, I cannot discuss the pending matter.

Judge May’s decision in Sessions is very well reasoned and the Court showed admirable judicial restraint by electing not to rule on the ultimate issue of whether the dialer before her was an ATDS at the pleadings stage. As courts continue to reach opposing conclusions on the topic–sometimes even on the same day and now a day apart–this is surely an issue to be left to the FCC to resolve under the primary jurisdiction doctrine.

Notably the Sessions opinion represents the first district court ruling in the Eleventh Circuit to hold that the FCC’s predictive dialer rulings were invalidated by ACA Int’l.Three previous district court opinions in that Circuit had reached the contrary conclusion.