In Marks v. Crunch San Diego, No. 14-56834, 2018 U.S. App. LEXIS 26883 (9th Cir. Sept. 20, 2018), a three judge panel found “the term ‘automatic telephone dialing system’ means equipment 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)[.]”  The only other requirement, according to the Ninth Circuit, is that the equipment have the capacity to dial “automatically.”

By way of background, the TCPA prohibits the use of an ATDS to make any call to a number assigned to a cellular service (other than for an emergency purpose) using an ATDS or an artificial or prerecorded voice without the prior express consent of the called party.  The statute defines an ATDS as equipment that has the “capacity” to perform the following functions: “store or produce telephone numbers to be called, using a random or sequential number generator,” and “to dial such numbers” presumably without human intervention.  47 U.S.C. § 227(a)(1).

In the underlying case, the defendant sent three unsolicited text messages to the plaintiff’s cell phone advertising its gym membership.  The plaintiff thereafter filed a putative class action alleging that the messages were sent using an ATDS “which has the capacity to send text messages to cellular telephone numbers from a list of telephone numbers automatically and without human intervention.”  The defendant moved for summary judgment alleging it did not use an ATDS because the equipment “presently lacked a random or sequential number generator, and did not have the potential capacity to add such a feature,” and the district court agreed.   Not so fast said the Ninth Circuit.

The Court first held that the D.C. Circuit’s recent ruling in ACA International vacated all prior FCC rulings pertaining to the definition of an ATDS.  That gave the Court a “clean slate” from which to interpret the definition of an ATDS.  In reversing the district court’s ruling, the Ninth Circuit held the statutory definition was ambiguous and looked to the “context and structure” of the TCPA’s statutory scheme. The Court determined that “Congress intended to regulate devices that make automatic calls.”

The Court thus held that an ATDS “means equipment 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).”  (emphasis added).  In other words, equipment need only have “the capacity to dial stored numbers automatically.”

The Court rejected the argument that an ATDS must be “fully automatic,” because in its view, “Congress made clear that it was targeting equipment that could engage in automatic dialing, rather than equipment operated without any human oversight… Common sense indicates that human intervention of some sort is required before an autodialer can begin making calls, whether turning on the machine or initiating its functions.  Congress was clearly aware that, at the very least, a human has to flip the switch on an ATDS.”

Importantly, the Court expressly did not reach the question whether a device needs to have “the current capacity to perform the required functions or just the potential capacity do so.”

The Ninth Circuit vacated the district court’s summary judgment ruling and held the plaintiff’s evidence of an ATDS was sufficient to survive summary judgment.

The FCC can effectively overturn Marks when it issues its anticipated TCPA ruling—assuming it reaches a contrary interpretation.  In the meantime, Marks will remain binding precedent in the Ninth Circuit.