Editor’s Note: See Rozanne’s February 2019 update, Crunch has Finally Left its “Marks.”
The Ninth Circuit’s decision on Thursday, September 20 to endorse an extremely broad definition of what constitutes an autodialer under the Telephone Consumer Protection Act (TCPA) opens the door not only for more litigation to thrive under the statute, but also for the U.S. Supreme Court or Federal Communications Commission to step in and deliver some long-sought clarity.
The Court’s three-judge panel included the court’s most conservative judges and departed from a Third Circuit decision that found an automatic telephone dialing system (ATDS) had to have the potential to randomly or sequentially generate numbers. Instead, the court applied the broad definition of an ATDS as outlined in the statute, by ruling an ATDS can also be a system “with the capacity to dial stored numbers automatically.”
For students of the TCPA, creditors, healthcare providers and first- and third-party collection agencies, Marks v. Crunch San Diego, Appeal 14-56834 landed a crushing blow to what many were hoping to be the third U.S. Circuit Court of Appeals to narrowly interpret the definition of an automatic telephone dialing system (ATDS). As you will recall, in March of 2018 the Second U.S. Circuit Court of Appeals decided the case of ACA v. FCC. In doing so, the Court rejected the FCC’s broad definition of an ATDS as equipment which has the present capacity or future potential capacity to dial consumers’ mobile phones using equipment that can dial predictively or from a list of numbers without human intervention. In deciding this way, the ACA v. FCC Court basically tossed out the FCC’s definition and pushed the responsibility to define an ATDS back to the FCC and the courts.
Following the Second U.S. Circuit Court of Appeals’ decision in ACA v. FCC and before Marks, two courts considered the definition of an ATDS. The Second U.S. Circuit Court of Appeals in King v. Time Warner Cable, Inc and the Third U.S. Circuit Court of Appeals in Dominguez v. Yahoo, Inc. both decided an ATDS is a type of dialing equipment that generates random and sequential numbers and dials such numbers.
In practical terms, this was the beginning of a new day in the world of TCPA litigation. These two decisions put an end to defining an ATDS as a predictive dialer – at least in the Second and Third Circuits – and left industry folks giddy with enthusiasm. For a brief time, calling parties believed, for good reason, the days of rampant TCPA litigation would now come to an end.
But on September 20, 2018, just weeks after the Second Circuit’s decision in King and the Third Circuit’s decision in Dominguez, the Ninth Circuit U.S. Court of Appeals published its decision in Marks. Rather than following the Second and Third Circuit’s lead and limiting the definition of an ATDS to only those dialing systems that have the capacity to generate random or sequential numbers and to dial such numbers, the Court took a turn in its analysis. Applying a broad reading of the statute, the Marks’ Court held there was yet another way for a dialing system to satisfy the definition of an ATDS – a system can qualify as an ATDS even if it cannot call numbers produced by a “random or sequential number generator.”
The Court explained,
“In relevant part, the TCPA prohibits the use of an ATDS to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice.” The TCPA defines an ATDS 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.” The panel summed up what courts have now been struggling with: The question is whether, in order to be an ATDS, a device must dial numbers generated by a random or sequential number generator or if a device can be an ATDS if it merely dials numbers from a stored list.”
The Court answered in the affirmative. The Marks decision has created a split among the U.S. Circuit Courts of Appeal, and if the decision holds after remand the U.S. Supreme Court may have to resolve this issue.
So, what does this all mean? It means stay the course.
- While Marks is the law of the land for those states in the 9th Circuit’s jurisdiction: District of Alaska; District of Arizona; Central District of California; Eastern District of California; Northern District of California; Southern District of California and the District of Hawaii, it is not clear whether other jurisdictions will adopt the Marks holding.
- The prudent person should take Marks very seriously and behave as though its definition applies to your calling practices even if you do make calls into consumers located in the 9th Circuit.
- It is very likely Marks will be appealed to the U.S. Supreme Court. Until the Supreme Court rules or the FCC issues a new definition of an ATDS, the law defining an ATDS is unclear due to the split of opinion among the Circuit Courts of Appeal.
- Only manual contact solutions are called into question by the Marks decision. Marks determined if the contact platform used to call, text or leave prerecorded messages on a consumer’s cell can store numbers and dial from the list – it’s an ATDS.
- From a technological perspective, neither the Manual Contact Solution (MCS) nor the Manual Call Assist feature set (MCA) capture numbers to be called for future use, provide long term storage, queue the numbers for subsequent dialing (ex: pacing) or dial from a list of numbers As always, you should review these technological parameters with your independent legal counsel to provide you with a legal opinion concerning this issue.
- For those of you who do not use Ontario Systems’ contact management solutions, one of the first questions you need to resolve is whether your manual contact solution has the capacity to store numbers and dial such numbers, dial from a list of numbers, have a downloaded list of numbers loaded into it and to dial such numbers.
This is a thorny legal issue which requires you and your legal counsel to review how your contact management system stacks up against this important legal decision. Get in touch with the Ontario Systems Compliance Team to clear up any confusion – Mitigating your TCPA risk depends on it.
 The Second Circuit held that capacity should be interpreted to refer to a device’s current functions, absent any modifications to the device’s hardware or software. That definition, the court stated, does not include every smart phone or computer that might be turned into an autodialer if properly reprogrammed, but it does include devices whose autodialing features can be activated by the equivalent of the simple flipping of a switch.
 The Third Circuit limited the ATDS definition to equipment with present capacity.
Register for PowerUp 2018‘s Pre-Conference Compliance Workshop – Monday, October 15, from 1:00-4:00 p.m. Here you’ll learn more from Rozanne and team about mastering text messaging, electronic payments, your web presence and consumer complaints. See you in Indy!
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