Editor's Note: This article previously appeared on the Ontario Systems Blog and is republished here with permission.

Telephone Consumer Protection Act (TCPA) litigation is hot. Fueled by the DC Circuit Court of Appeal’s decision last March in ACA International v. FCC, callers of all types are being sued and cases before all courts are being appealed faster than we can spell certiorari. Why? Because the stakes are high.

First Comes Confusion

ACA v. FCC left us with little to no definition of an Automatic Telephone Dialing System (ATDS). In effect, the DC Circuit’s decision was a time machine that threw us back to the late 90’s – a time when debt collectors were exempt by rule from the TCPA and life was good. For many, the decision felt like a win, but the Monday morning quarterbacks quickly realized the only thing ACA v. FCC really accomplished was to create even more confusion and ambiguity in the law. By casting aside the FCC’s 2003, 2008, 2012 and 2015 orders interpreting the definition of an ATDS, ACA v. FCC basically left consumers and businesses alike wondering if they would even know an ATDS if they saw one.

Along Came Crunch

On November 7, 2018, in the closely-followed case Marks v. Crunch San Diego, LLC, No. 14-56834 (9th Cir.), the 9th Circuit became the third appellate court to address the in the wake of ACA v. FCC.  Departing from the 2nd and 3rd Circuits, the Marks Court adopted yet another definition of ATDS. Rather than interpreting the statutory definition of ATDS as a device that can store or produce random or sequential numbers and to dial such numbers [as did the 2nd and 3rd Circuits], the Marks court held any device which can store and dial numbers to a consumer’s mobile number is an ATDS.

Marks basically skipped over the words in the statutory definition pertaining to random or sequential number generators and ruled equipment that stores and dials telephone numbers from a list, regardless of whether those numbers were randomly or sequentially generated, is an ATDS, thus classifying the common smart phone as an ATDS. It’s terribly disappointing that the 2nd Circuit did not take the time to define the word “store” as used in the statute. None the less, Crunch San Diego appealed. The 9th Circuit denied its petition and sent Crunch on its way to the U.S. Supreme Court.

Supreme Court Review

Review by the Supreme Court is not automatic. The Supreme Court only accepts cases for review in limited situations -- specifically, Rule 10. Considerations Governing Review on Writ of Certiorari, provides:

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;

Author’s Explanation: Huge conflict among courts of appeals and courts of last resort or some court somewhere came up with some goofball interpretation of the law.

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

Author’s Explanation: Conflict of legal decisions interpreting a federal issue among courts of last resort.

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

Author’s Explanation: A court of last resort or court of appeals has interpreted a federal issue which conflicts with the Supreme Court’s previous or relevant decisions.

My Prediction

Due to the conflict in opinion among Circuit Courts of Appeals interpreting the definition of an ATDS, applying the requirements of Rule 10, I believe the U.S. Supreme Court may very well grant the Crunch San Diego’s petition for certiorari. Should such a review occur, we will hopefully receive the long-awaited answers to questions such as:

  • Does an ATDS have to possess the capacity to generate random or sequential numbers and to dial such numbers?
  • What is the definition of store? Is storage limited to RAM memory, the load of a pool, or the retention of a call record in the device after call launch?
  • If the consumer you intend to call must grant consent or must the consumer you actually call grant TCPA style consent?

For an interesting blog on this topic, click here.

In the meantime, behave conservatively, document consent and revocation, audit to your processes, update your policies and procedures and diagram your call and data flows through your autodialer and your manual contact system. Remember if you do use a manual contact system, make sure it does not store numbers in RAM memory or use or save lists of numbers. Finally, if you need assistance with any aspect of your consumer contact processes or procedures please reach out to me – Happy to consult and happy to help.

Happy Thanksgiving to you my friends.

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Tags: TCPA