On January 28, 2019, petitioner Crunch San Diego, LLC, filed a petition for a writ of certiorari with the U.S. Supreme Court, asking the Court to review the Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. Sept. 20, 2018).

The question presented in the petition is as follows:

Whether the Ninth Circuit erred in expanding the TCPA’s definition of “automatic telephone dialing system” – in acknowledged conflict with the Third Circuit and in stark tension with the D.C. Circuit – to encompass any device with capacity merely to dial stored telephone numbers.

As you recall, the TCPA itself defines an ATDS as:  “[E]quipment 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.”  47 U.S.C. § 227(A)(1). 

In contrast, the Ninth Circuit interpreted the definition to mean: “[E]quipment which has the capacity – (1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator – and to dial such numbers automatically (even if the system must be turned on or triggered by a person).”  Marks, 904 F.3d at 1052.  The Ninth Circuit found that “the statutory definition of ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.”  Id. at 1043.    

As we previously reported, the Ninth Circuit’s decision stands in stark contrast to the decision reached by the United States Court of Appeals for the Third Circuit in Dominguez v. Yahoo, Inc., wherein the court defined an ATDS as extending only to devices that “randomly or sequentially generat[e] telephone numbers, and dial those numbers.”

The Crunch petition argues that granting a writ of certiorari is justified because of the conflict the Ninth Circuit decision poses with Dominguez and with the D.C. Circuit’s opinion in ACA Int’l v. FCC, 885 F.3d 687, 693 (D.C. Cir. Mar. 16, 2018), and because the Ninth Circuit’s decision impermissibly expands the statutory definition of an ATDS.  The petition further notes that commenters, such as the TCPA Defense Force’s own Artin Betpera have previously opined on the Ninth Circuit’s “extreme and expansive” reading of the statute.

On a separate but related track that could also have far-reaching implications is the pending omnibus ruling by the FCC.  Following the Ninth Circuit’s decision in Marks v. Crunch, the FCC issued a Public Notice on October 3, 2018, which seeks further comment on whether the Ninth Circuit appropriately interpreted the ATDS definition.  The FCC specifically sought “further comment on what constitutes an ‘automatic telephone dialing system,’” and comment on how it should address the Marks holding.

From our perspective, the likelihood that the Supreme Court grants the Petition for Certiorari may depend on how quickly the FCC acts to address the issues remanded by the D.C. Circuit in March of 2018.  If the FCC acts quickly, and concludes that the Ninth Circuit’s interpretation was unreasonable and inconsistent with the intent of the TCPA, the Supreme Court may remand the case to the Ninth Circuit for further consideration, rather than wading into the issues directly.  However, if the FCC does not act quickly enough, the Supreme Court may decide that it needs to step in to address the disparate and contradictory decisions issues by the Courts of Appeal. Taking up the case may also allow the Supreme Court to further evaluate the issues of judicial deference to agency decision-making that are already going to be a hot topic for the Court.   

Stay tuned to see what both the FCC and the Supreme Court end up doing in the continued Marks saga. 

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