On September 20, 2018, in Marks v. Crunch San Diego, the Ninth Circuit became the latest federal appeals court to weigh in after the D.C. Circuit’s decision last March invalidating the Federal Communications Commission’s (FCC) expansive definition of automatic telephone dialing systems (ATDS or “autodialer”) under the Telephone Consumer Protection Act (TCPA). The Ninth Circuit decision effectively reinvigorates much of what the FCC had captured in its approach to autodialers under the TCPA in its July 2015 Omnibus Ruling, and creates confusion given courts on the other side of the country that have taken a much narrower view of what’s left after the D.C. Circuit’s invalidating relevant portions of that ruling. Marks now also creates a circuit split of the kind that greatly increases the chances that, if petitioned, the Supreme Court will review the issue.

From a practical perspective, the Ninth Circuit makes its position very clear on two key issues when determining whether a device is an ATDS – that a device with the ability to store numbers, even if the numbers are not randomly or sequentially dialed, is an ATDS, and that relying on human intervention with respect to picking numbers to call, loading them in for dialing, crafting and uploading the message, and scheduling transmission is a not an absolute shield when defending a TCPA claim.

Read the full analysis here.