Ninth Circuit Expands the Definition of an ATDS

The very first clause in the TCPA is the definition of an Automatic Telephone Dialing System, which the statute defines as “equipment 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 USC 227(a)(1). Notwithstanding this limited definition, the Ninth Circuit today ruled in Marks v. Crunch San Diego, LLC that an ATDS means more than what the statute says. It did so by reordering the aforementioned definition’s words and replacing a conjunctive “and” with a disjunctive “or,” and holding that the term ATDS actually “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). By separating and reordering these clauses to de-couple the “random or sequential number generator” requirement from the storage requirement, the Ninth Circuit appears to have re-introduced (at least in the Ninth Circuit, and at least for now) the same over breadth and uncertainty that the D.C. Circuit appeared to rectify with its decision in ACA International. Continue reading   »

Another District Court Rejects FCC Prior Orders on ATDS in Light of ACA International

One of the central issues before the D.C. Circuit in ACA International v. FCC was whether the FCC’s vague and expansive definition of an ATDS would withstand judicial scrutiny. It did not, and as we explained at the time the decision was issued, the D.C. Circuit set aside not only the portion of the FCC’s July 2015 Declaratory Ruling and Order pertaining to ATDS, but also the FCC’s prior rulings dating back to 2003. Following ACA International, and while the FCC considers how to amend its now-invalidated prior rulings, the plaintiffs’ bar has attempted to narrow the reach of ACA International, arguing that the D.C. Circuit set aside only the 2015 Declaratory Ruling and Order, and that the validity of the FCC’s prior rulings was not under review. Just as the D.C. Circuit rejected this argument, district courts across the country continue to reject this argument, most recently a federal district court in the Central District of California. Continue reading   »

Trial Courts Split On Whether Consumers Can Unilaterally Revoke Contractual Consent

As we discussed last year, the Second Circuit has held that consumers cannot unilaterally revoke consent that was provided as part of a bilateral contract. See Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51 (2017). In doing so, it explained that it is “black letter law” that a “party may not alter a bilateral
contract . . . without the consent of a counterparty,” and that nothing in the TCPA purports to “permit a consumer to revoke his consent to be called when that consent forms part of a bargained-for exchange.” Although this seemingly straightforward statement is now settled within the Second Circuit, see, e.g., Harris v. Navient Solutions, LLC, No. 15-0546, 2018 U.S. Dist. LEXIS 140317 (D. Conn. Aug. 7, 2018), it remains unsettled elsewhere. Continue reading   »