As had been expected, Crunch San Diego has filed a petition with the Supreme Court, appealing a ruling it received in the Ninth Circuit Court of Appeals that ultimately created a vast definition for what constitutes an automated telephone dialing system.
The Ninth Circuit’s ruling in Marks v. Crunch San Diego ruled that an ATDS is any device that “stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.” That definition “squarely conflicts” with other rulings at the appellate court level, Crunch wrote in its petition submitted to the Supreme Court, as well as contradicts the purpose of the Telephone Consumer Protection Act.
Crunch had petitioned the Ninth Circuit for an en banc hearing after the initial decision was released last September, which was denied.
The plaintiff — Jordan Marks — received three text messages from Crunch, and subsequently filed suit, alleging the messages violated the TCPA because they had been sent using an ATDS. Crunch won a summary judgment motion, arguing that the technology used to send the text messages did not meet the TCPA’s definition of an autodialer because the technology lacked a random or sequential number generator. The Ninth Circuit overturned that decision.
In filing the petition with the Supreme Court, Crunch noted that the Third Circuit Court of Appeals ruling in Dominguez v. Yahoo, Inc. has adopted the opposite ruling of the Ninth Circuit, which could necessitate the Supreme Court needing to weigh in and settle the issue. The petition also mentioned the Ninth Circuit’s ruling created “serious tension” with the ruling in ACA International v. FCC from the D.C. Court of Appeals.
Along with the issues in other cases at the appellate levels, the ruling also “reaches far beyond the TCPA’s purpose,” the petitioner wrote in its brief.
The statutory context, along with legislative findings and history, confirm that Congress enacted the TCPA to target a particular type of behavior (telemarketing) using a particular type of equipment (ATDS). Congress plainly did not target all forms of solicitation by telephone or all technology that might someday be used to facilitate it.
