As discussed here on the Blog, the Ninth Circuit ruled last Friday in Marks v. Crunch San Diego, LLC that equipment need not have the capacity to dial numbers randomly or sequentially to be an ATDS under the TCPA. Rather, according to the Ninth Circuit, it is sufficient for equipment to have the capacity “to store numbers to be called . . . and to dial such numbers automatically (even if the system must be turned on or triggered by a person)” to be an ATDS.
Law360 also published an article addressing the impact of the decision entitled “Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take,” and TCPA Blog contributor Justin Kay was quoted in the article.
Justin notes that the decision in Marks is “a very aggressive opinion by the Ninth Circuit, which appears to really have gone out of its way to expand the scope of the TCPA” and opines that he “think[s] it will certainly get the FCC’s attention that the court has ruled this way.”
As for what will happen next, Justin believes that “[g]iven the parties involved and the importance of this case,” he “fully expect[s] that the defendant and their amici will be exploring their review options, either through an en banc Ninth Circuit panel or taking this ultimately to the Supreme Court.” Justin states that “[w]e’re likely to see a flurry of activity that’s consistent with what happened when the FCC’s July 2015 order came down or when folks were waiting for the D.C. Circuit’s decision, where one side sought to stay any litigation and the other side pressed forward,” and that “we’re definitely likely to see the plaintiffs’ bar angling to push forward and the defense bar pushing back, saying that this isn’t the last word on the issue.”
Justin also notes that the decision did include a helpful nugget: “correctly acknowledging that the D.C. Circuit wiped out everything the FCC had said about [autodialers] dating back to 2003.”