In ACA Int’l v. FCC, No. 15-211, 2018 U.S. App. LEXIS 6535 (D.C. Cir. Mar. 16, 2018) the United States Court of Appeals for the District of Columbia Circuit overturned the FCC’s “expansive” interpretation of what constitutes an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. For an overview of key takeaways from the ruling, please see our previous blog post here.

While substantive movement in the immediate aftermath of the ACA Int’l decision has so far been limited, at least one district court has applied the express holding of ACA Int’l on the definition of an ATDS.  See Marshall v. CBE Grp., Inc., No. 16-cv-02406, 2018 U.S. Dist. LEXIS 55223, at *12 (D. Nev. Mar. 30, 2018) (“In light of [the ACA Int’l] ruling, the Court will not stray from the statute’s language which ‘mandates that the focus be on whether the equipment has the ‘capacity’ to store or produce telephone numbers to be called, using a random or sequential number generator.’”) (internal citations omitted, emphasis in original). Dorsey’s Alexandra Krasovec has further analyzed the Marshall decision here.

To date, courts are predictably giving room for additional time and briefing to assess the impact of ACA Int’l on pending litigation. For example, in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 U.S. App. LEXIS 7283 (9th Cir. Mar. 22, 2018), the Ninth Circuit ordered the parties to submit additional briefing as to the effect of ACA Int’l on the issues raised by the underlying appeal. That case involves an appeal of the district court’s decision granting defendant’s motion for summary judgment as to plaintiff’s putative class action complaint. Marks v. Crunch San Diego, LLC, 55 F. Supp. 3d 1288 (S.D. Cal. 2014) (holding that defendant’s text messaging system did not incorporate an ATDS, and the undisputed facts showed that the system did not have the potential capacity to become a ATDS).

Another court continued a hearing on a pending class certification motion to allow briefing on the impact of ACA Int’l. See Larson v. Harman-Mgmt. Corp., No. 16-cv-00219, 2018 U.S. Dist. LEXIS 47628, at *3-4 (E.D. Cal. Mar. 22, 2018) (denying defendant’s request for special status conference, but continuing hearing on pending class certification motion by 28 days to allow ACA Int’l briefing).

And in (technically) the first “post ACA Int’l stay,” a Nevada District Court stayed a TCPA case until the deadline to move for a panel rehearing or rehearing in banc expires in ACA Int’l.  See Brown v. Credit One Bank, N.A., No. 2:17-cv-00786-JAD-VCF, 2018 U.S. Dist. LEXIS 58810 (D. Nev. Apr. 6, 2018). The Court held the stay would “permit the parties to evaluate—and me to consider—the viability of the plaintiff’s TCPA claim under the most complete precedent.”  See id. at *10-11. The stay appears to be short-lived, however, as the deadline to move for a rehearing in ACA Int’l expires this month.