In Lee v., LLC, 2014 WL 4145504 (D.Kan. 2014), Judge Humphreys stayed a TCPA case under the Primary Jurisdiction Doctrine while the FCC addresses what an ATDS is.

Defendant contends that three petitions currently pending before the FCC specifically address the interpretation of “capacity” as stated in the TCPA. In all three petitions, the filing parties (Communication Innovators, YouMail, and TextMe) request that the FCC declare whether equipment that lacks the present capacity to generate random or sequential numbers constitutes an ATDS. Because defendant opposes plaintiff’s complaint with the contention that its dialing system lacked capacity, defendant argues that this court should rely upon the primary jurisdiction doc-trine or its inherent authority to stay all proceedings until the FCC has ruled on this issue. ¶ Plaintiff disagrees, alleging in part that the petitions pending before the FCC address wholly different issues from those in this case. After review of the pending FCC petitions above (see n. 2), the court rejects this argument. Plaintiff further asserts that both the FCC and other courts have already ruled on the determining issues. However, plaintiff cites only non-binding cases from the Northern District of Illinois and the Ninth Circuit, none of which define “capacity” under the TCPA. Plaintiff misunderstands both the previous determinations of the FCC and the binding nature of the decisions of other courts. ¶ Two recent decisions in this district are instructive. In Higginbotham v. Hollins Magistrate Judge Teresa J. James found that a stay of that action was appropriate pending resolution of FCC proceedings. Likewise, in Higgenbotham v. Diversified Consultants, Inc. Magistrate Judge James P. O’Hara issued a stay pending the FCC’s decision on the Communication Innovators’ petition. For substantially the same reasons stated in those orders, this court agrees that the primary jurisdiction doctrine should be applied in this circumstance. ¶ The dual purposes of the doctrine of primary jurisdiction are achieved by allowing the FCC to rule before proceeding further. First, the FCC will be allowed to apply its own agency experience and technical expertise to the specific question of capacity. Second, a decision by this court prior to the FCC’s determination of capacity could result in conflicting decisions; therefore, allowing the FCC to decide this issue will help to ensure uniformity in the future decisions of this court. Therefore, the court finds that the FCC’s declaratory ruling on the issue of capacity will aid resolution of this case and a stay of this matter is appropriate.