Following the D.C. Circuit’s decision in ACA Int’l v. FCC, courts have been struggling for a consistent interpretation of the capacity and functionality required to turn a device into an automatic telephone dialing system (“ATDS”). Although most courts have tried to follow a narrower reading of the statutory language given the ACA Int’l Court’s chastisement of the FCC for straying too far, as we previously reported, the Ninth Circuit in Marks v. Crunch San Diego, LLC took the opposite approach. The Marks Court opined that Congress’s intent with the TCPA was to regulate all devices that make automatic calls, including devices that can automatically call numbers from a list regardless of whether those numbers were generated by a random or sequential number generator. This position stands in direct contrast to other decisions, particularly, the Third Circuit’s decision in Dominguez v. Yahoo.
As time has passed, and the government shutdown likely slowed the FCC’s work on a new Order regarding the definition of an ATDS, Crunch filed a Petition for a Writ of Certiorari before the Supreme Court on Wednesday. In its Petition, Crunch argues that the Ninth Circuit’s decision impermissibly expands the statutory definition of an ATDS and misses Congress’s intent. According to Crunch, Congress intended to regulate calls made with equipment that dials blocks of sequential or randomly generated numbers which could tie up emergency services and annoy users with unlisted telephone numbers. The Ninth Circuit’s interpretation improperly reads the phrase “using a random or sequential number generator” to only modify half of the definition’s preceding clause (“to store or produce telephone numbers to be called”) rather than the whole clause. Additionally, the Ninth Circuit’s decision creates a circuit split with the Third Circuit which took a much narrower reading more consistent with the statutory language.
Although trying to guess whether the Supreme Court will grant Certiorari is always difficult, this case seems well poised for review. As highlighted by Crunch, the Ninth Circuit’s decision creates a circuit split in need of resolution. The TCPA is also a hotly-litigated area of the law with thousands of cases each year largely being decided based upon whether the phone or text system used is or is not an ATDS. However, if the FCC issues its new Order before the Supreme Court decides on Crunch’s Petition, the Court may remand the case to the Ninth Circuit for further review in light of the FCC’s Order.
Marks’ response to the Petition is due March 1st and the Court will likely make a decision on whether to grant Certiorari by the end of the current term in June.