9th Circuit Text Messaging TCPA Ruling Defines ATDS Broadly
A federal court gave broad meaning to "automatic telephone dialing systems" covered by Telephone Consumer Protection Act robocalling restrictions. "The statutory definition of ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have…
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been generated by a random or sequential number generator," said the unanimous opinion Thursday of a three-judge panel of the 9th U.S. Circuit Court of Appeals, in Jordan Marks v. Crunch San Diego, No. 14-56834. It reversed a district court summary judgment in favor of Crunch Fitness. Marks claimed three text messages from Crunch violated the TCPA, but the lower court found the system used wasn't an ATDS. The 9th Circuit noted Congress left ATDS alone in revising the TCPA after an FCC 2015 ATDS decision: "Because we infer that Congress was aware of the existing definition of ATDS, its decision not to amend the statutory definition of ATDS to overrule the FCC’s interpretation suggests Congress gave the interpretation its tacit approval." Since the 1991 TCPA, "no Court or FCC ruling has so expansively defined an [ATDS] as the Ninth Circuit has," emailed Scott Goldsmith of Dorsey & Whitney, who wasn't involved in the case: "By defining an ATDS as equipment that simply has 'the capacity to dial stored numbers automatically, the Ninth Circuit may have just rendered every smart phone user a potential TCPA violator. The ruling may be short-lived, however, as the FCC is poised to issue its new TCPA ruling" (see 1809190036). He said the D.C. Circuit, when it overturned the 2015 definitions (see 1803160053), "did so with the concern that the FCC’s interpretation could render every day smart phones an ATDS subject to the TCPA. Ironically, the Ninth Circuit’s ruling in Marks appears to do just that." It's likely Crunch will seek Supreme Court review of the ruling, which "conflicts" with a 3rd Circuit June ruling on autodialer functionality in Dominguez v. Yahoo, Goldsmith told us Friday. Crunch didn't comment. The National Consumer Law Center believes the ATDS definition should be broad (see 1809200059) but contain a carve-out for "ordinary use of a smart phone," emailed Senior Counsel Margot Saunders, noting the D.C. Circuit "recommended that the FCC use its exemption authority to deal with that issue."