As we previously reported here, the court in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) recently expanded the definition of “automatic telephone dialing system,” at least within the Ninth Circuit. And in response, the FCC issued a Public Notice just last week (covered here) seeking further comment on how to interpret the ATDS definition in light of Marks. The comment period closes on October 24, 2018.
But the Marks decision is not necessarily final. On October 4, 2018, the defendant, Crunch San Diego, LLC, filed a Petition for Rehearing En Banc, thus asking a larger group of Ninth Circuit judges to rehear the appeal. A copy of the Petition is available here. Notably, Crunch San Diego, LLC argues that the three-judge panel’s prior decision “must be reconsidered because it interprets—and effectively rewrites—the [TCPA] in a manner that directly conflicts with the statutory text, legislative history, and binding intra-circuit and persuasive inter-circuit authority from the Third and D.C. Circuits regarding the definition of an [ATDS].”
We will continue to monitor the Marks case closely and report back with further developments.