Ninth Circuit Creates Groundbreaking Split in Its Expansive Definition of an Autodialer Under the TCPA

On September 20, 2018, the Ninth Circuit in Marks v. Crunch San Diego, LLC, endorsed an expansive definition of what constitutes an autodialer under the Telephone Consumer Protection Act (TCPA), broadening the scope of litigation. This decision departs from the D.C. Circuit’s ruling earlier this year in ACA Int’l v. FCC (March 16, 2018), which took issue with the FCC’s definition encompassing any conventional smartphone as an autodialer. Plaintiffs and defendants alike are anxiously awaiting clarification from the FCC, which informed the public of its intentions to issue new interpretations of the statute earlier this year. But the Ninth Circuit began anew with its own assessment of the legislature’s intent of the statute, finding that an autodialer encompasses equipment that stores telephone numbers to be called automatically, including from a list, whether or not those numbers have been generated by a random or sequential number generator. 

From the defense bar’s perspective, there is an expectation that the plaintiffs will take advantage of this extremely broad definition, which theoretically renders every automatic dialer calling from a list a potential TCPA violator. There is hope, however. Chairman Ajit Pai of the FCC previously expressed his concerns with a far-reaching interpretation of an autodialer, and the FCC has already held a public comment period to solicit input on new rulemaking on the autodialer definition. Moreover, Marks has created a clear split with the approach taken by the Third Circuit in Dominguez v. Yahoo Inc. (June 26, 2018), such that the Supreme Court may be inclined to review this issue sooner rather than later.

TIP: Defendants faced with autodialer TCPA class action claims, including robocalls and text messaging campaigns, are well-advised to carefully understand the seemingly ever-changing precedent of what constitutes an autodialer when crafting their defenses.