Ninth Circuit Declines to Rehear Marks Appeal

As we previously reported, the defendant in Marks v. Crunch San Diego, LLC, No. 14-56834 (9th Cir.) filed a Petition for Rehearing En Banc that asked the Ninth Circuit to revisit its recent decision expanding the definition of “automatic telephone dialing system.” 

On October 30, 2018, the Ninth Circuit issued a one-page, summary Order denying the Petition. A copy is available here. Accordingly, the Marks opinion stands.

Well, for now. The defendant may petition the U.S. Supreme Court to review the decision. And in the meantime, as we reported here, the FCC issued a Public Notice that sought comment on how to interpret the ATDS definition in light of Marks. The comment period has closed. As we discussed here, the FCC has received a variety of comments, with many organizations offering pointed criticism of the Marks decision.

At a minimum, the ball remains in the FCC’s court to reconcile the competing interpretations of what constitutes an ATDS. With all signs pointing to a speedy resolution of this issue, it should go without saying that TCPA practitioners across the country will be watching the FCC’s next move, not to mention any further activity in Marks itself. As always, we’ll report back with any developments on this issue.