FCC Seeks Comment on Interpretation of the TCPA Following an Expansive Ninth Circuit Decision

The FCC is seeking comment regarding the definition of an “automatic telephone dialing system” (ATDS) following the recent decision of the U.S Court of Appeals for the Ninth Circuit in Marks v. Crunch San Diego, LLC.

The Marks court examined the language of the TCPA and its underlying purpose and held that an ATDS is not limited to devices with the capacity to call numbers produced by a random or sequential number generator.  Rather, the term ATDS includes devices with the capacity to store numbers in a list and to dial them automatically.

In particular, the FCC seeks comment on the following issues:

  • How should the Commission define the phrase “using a random or sequential number generator” in light of the recent decision in Marks, as well as how that decision might bear on the analysis set forth in ACA International v. FCC?
  • To the extent the statutory definition is ambiguous, should the Commission interpret the phrase to mean that any device with the capacity to dial stored numbers automatically is an ATDS?
  • What devices have the capacity to store numbers and do smartphones have such capacity?
  • What devices that can store numbers also have the capacity to automatically dial such numbers? Do smart phones have such capacity?
  • How should the Commission address the two court holdings in Marks and ACA International?
  • Are there any other issues addressed in the Marks decision that should be considered in interpreting the definition of an ATDS?

We encourage interested parties to file comments related to these important issues. Comments are due October 17, 2018. Reply comments are due October 24, 2018. Please Stay tuned for a detailed M&S blog on Marks v. Crunch San Diego, LLC and related court cases.

* Ali Najaf contributed to this post.