MONTH-IN-BRIEF (Oct 2018)
Consumer Finance Law
The TCPA Saga: The Drama Continues
By Kristina A. Del Vecchio, Joseph & Cohen, P.C.
As reported last month, the Ninth Circuit took the unprecedented position in Marks v. Crunch San Diego LLC, that an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”) “includes devices with the capacity to dial stored numbers automatically." On October 4, 2018, the defendant, Crunch San Diego LLC, filed a petition for rehearing en banc, which asks a larger group of Ninth Circuit judges to re-hear the appeal. Critically, Crunch argues that the Ninth Circuit’s decision abrogates its previous decision in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009), in which the court pointed out “the statute’s clear language” and read the phrase “to store or produce telephone numbers to be called, using a random of sequential number generator” to mean “store, produce, or call randomly or sequentially generated telephone numbers.” Crunch also argues that the decision in Marks “must be reconsidered because it interprets—and effectively rewrites—the [TCPA] in a manner that directly conflicts with the statutory text, legislative history, and binding intra-circuit and persuasive inter-circuit authority from the Third and D.C. Circuits regarding the definition of an [ATDS].” Separately, on October 3, 2018, the Federal Communications Commission (“FCC”), which is responsible for promulgating rules and regulations interpreting the TCPA, issued a request for comment on what constitutes an ATDS in light of the Marks decision. The FCC’s request for comment appears to focus on how to interpret Marks and the D.C. Circuit’s ACA International decision and how smartphones fit into the definition of an ATDS.