A District Court in California has suggested that present capacity is required to establish a claim under the Telephone Consumer Protection Act (the "TCPA"). See Chyba v. Bayview Loan Servicing, LLC, C.A. No. 14-cv-1415, 2016 U.S. Dist. LEXIS 59494 (S.D. Cal. May 3, 2016). In a dispute with a mortgage servicer, the consumer raised an assortment of claims including the FDCPA and the TCPA. The only claim left unresolved by the parties' cross motions for summary judgment was the TCPA claim. Ironically, that's where the court's decision gets interesting.

With respect to the TCPA, the consumer contended her mortgage servicer made eleven automated calls to her cell phone. In support of her motion for summary judgment, the consumer filed an affidavit indicating that at the beginning of each call, there was an "artificial time delay." She also submitted a handwritten call log and pictures of her cell phone's screen showing the mortgage servicer's number. In response, the mortgage servicer contended that the calls were made from a landline that "cannot be used" for autodialed calls. The court denied both parties' motions for summary judgment after determining an issue of fact existed as to whether the calls were made by an automated telephone dialing system and ordered the parties to undertake additional discovery on the issue. Specifically, the court ordered that the discovery should concern "whether the 1300 phone line is able to and did use an automated system to call Plaintiff's cell phone."

As many may recall, one of the hallmarks of the FCC 2015 Declaratory Ruling is the FCC's rejection of a present use or current capacity test to determine whether a dialing system is subject to the TCPA. The FCC instead held that capacity of an autodialer is not limited to its current configuration, but also includes its potential functionalities even if it currently lacks the requisite software. The FCC's holding on that issue is one of the key issues on appeal in the D.C. Circuit. See ACA International v. Federal Communications Commission, Case No. 15-1211 (D.C. Cir. June 10, 2015). It would appear from Chyba, that at least one judge in the Southern District of California agrees with the appellants in the FCC appeal and believes that the FCC's definition is out of whack with the statutory language of 47 U.S. §227 and the correct analysis is the present capacity.