In Gensel v. Performant Technologies, Inc., 2015 WL 6158072, at *2 (E.D.Wis.,2015), Judge Randa stayed a TCPA case, that was previously stayed under the Primary Jurisdiction Doctrine, because it was likely that the D.C. Circuit will overrule the FCC on the ATDS issue.

Performant pins its hopes on the expectation that the appellate courts, particularly the Seventh Circuit, will overrule the FCC. This seems unlikely on the number reassignment/safe harbor issue. . . That said, a contrary result seems more likely on the capacity issue. As explained by one of the dissenting Commissioners:    “The Order dramatically expands the TCPA’s reach. The TCPA prohibits a person from making ‘any call’ to a mobile phone ‘using any automatic telephone dialing system,’ except in certain defined circumstances. The statute defines an ‘automatic telephone dialing system’ as ‘equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. As three separate petitions explain, trial lawyers have sought to apply this prohibition to equipment that cannot store or produce telephone numbers to be called using a random or sequential number generator and that cannot dial such numbers.  That position is flatly inconsistent with the TCPA. The statute lays out two things that an automatic telephone dialing system must be able to do or, to use the statutory term, must have the ‘capacity’ to do. If a piece of equipment cannot do those two things—if it cannot store or produce telephone numbers to be called using a random or sequential number generator and if it cannot dial such numbers—then how can it possibly meet the statutory definition? It cannot. To use an analogy, does a one-gallon bucket have the capacity to hold two gallons of water? Of course not.”  Dissenting Statement of Commissioner Ajit Pai. The other dissenting Commissioner further expounded that it “seems obvious that the equipment must have the capacity to function as an autodialer when the call is made not at some undefined future point in time…. Not so according to the order. Equipment that could conceivably function as an autodialer in the future counts as an autodialer today.” Statement of Commissioner Michael O’Rielly Dissenting In Part and Approving In Part.  Thus, it seems to the Court, as it seemed to the dissenting Commissioners, that the FCC majority’s interpretation of the term “capacity” contradicts the plain language of the statute. If so, then the FCC’s ruling on this issue is not entitled to deference on appeal. See, e.g., Qwest Comm’n Int’l, Inc. v. F.C.C., 398 F.3d 1222, 1230 (10th Cir.2005) (“If Congress has spoken, our inquiry ceases; the agency, as well as the court, must give effect to Congress’s unambiguously expressed intent”) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842–43 (1984)). Finally, and most importantly, if the Seventh Circuit were to rule that “capacity” means “present capacity” in accordance with the plain language of the statute, such a ruling would be dispositive of the instant case because it is undisputed that Performant’s telephony system did not and does not have the capacity to randomly or sequentially call phone numbers. Therefore, the Court finds that a stay pending the outcome of the appeals from the FCC’s July 10 Declaratory Ruling and Order is in the interest of judicial economy.