January 19, 2021

Volume XI, Number 19


January 18, 2021

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Southern District of California Enters the Ring in the Fight Over Post-ACA Int’l ATDS Definition

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.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume VIII, Number 185



About this Author

Susan Nikdel, Womble, litigation attorney

Susan represents clients in commercial and financial services litigation, particularly Telephone Consumer Protection Act (TCPA) cases. She is part of a team that has handled more than 600 TCPA cases, including more than 50 national class actions.

Prior to beginning her legal career, Susan served as a Judicial Extern for the Honorable Theodor C. Albert in the U.S. Bankruptcy Court, Central District of California.  She is a Certified Mediator.

Susan is fluent in Farsi/Persian and conversational in Spanish.