9th Circuit’s influence over TCPA jurisprudence is growing

"Robocalls" -- common parlance for automated or prerecorded telephone calls -- have become the frequent subject of media attention lately. The Telephone Consumer Protection Act is the primary law that regulates "robocalling." The act makes it unlawful to call a person's cellphone using an automatic telephone dialing system, or ATDS, or an artificial or prerecorded voice without their consent. Given the substantial statutory damages available under the TCPA's private right of action, the act has sparked thousands of federal filings per year.

California is a hub of TCPA litigation with new, major TCPA class actions being filed against all manner of major businesses on what seems like a near-daily basis. As a natural consequence, the 9th U.S. Circuit Court of Appeals has issued several influential opinions addressing key aspects of the statute such as a consumer's Article III standing to sue for violations of the TCPA (Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. Feb. 21, 2017)); what it means to engage in "telemarketing" (Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. Oct. 17, 2012)); and the standard under which vicarious liability for TCPA violations is determined (Thomas v. Taco Bell Corp., 582 Fed. Appx. 678 (9th Cir. Jun. 6, 2014)). But perhaps one of the 9th Circuit's greatest impacts on TCPA jurisprudence has been on the legal issue that is at the very heart of the TCPA: What exactly is an ATDS?

Indeed, this is one of the most heavily litigated legal questions under the TCPA, particularly within the past year. An opinion by the U.S. Court of Appeals for the D.C. Circuit in early 2018 threw the definition into disarray by creating a question over the validity of prior Federal Communications Commission rulings addressing the meaning of the term. ACA International v. FCC, 885 F.3d 687, 691 (D.C. Cir. March 16, 2018). Prior to ACA International, a series of FCC rulings had gradually expanded the definition of ATDS from the obsolete random or sequential number generators that telemarketers used when the statute was passed in 1991, to the far more sophisticated dialing technology used by consumer-facing industry participants today.

ACA International triggered a flurry of inconsistent decisions as courts grappled with the myriad of questions left in the wake of the opinion: Are the prior FCC rulings concerning the ATDS definition still valid? If so, which ones? If not, what does the original statutory definition of the term require?

Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. Sept. 20, 2018) was the first case in the nation in which a circuit court directly held that all of the FCC's prior ATDS rulings were no longer valid as a result of ACA International, but that the statutory definition of the term still encompassed modern dialing technology. The court reached this result by adopting a rather expansive interpretation of ATDS as any "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)." This is, by many accounts, an interpretation that strays from the strict statutory language of the TCPA, but one which the 9th Circuit concluded was appropriate in light of the act's legislative history.

The impact of Marks was immediately felt within the 9th Circuit and effectively quashed any debate over whether modern dialing technology was regulated by the TCPA. In addition, the 9th Circuit's influence over this issue has slowly extended across the country with many lower courts adopting the Marks rationale in some form or fashion. Marks even prompted the FCC to issue a notice seeking public comment on the opinion as part of the FCC's own ongoing rulemaking proceedings concerning the definition of ATDS.

What is more, constitutional challenges to the TCPA by Facebook and Charter Communications are currently pending before the 9th Circuit. And it is likely that within the coming weeks or months, the 9th Circuit will issue another opinion that has the potential of making yet another big splash in the annals of the TCPA.

California and the 9th Circuit more broadly have proven to be a wellspring of judicial opinions that have broadly impacted important federal laws, and the TCPA is no exception. With "robocalls" receiving increasing public attention and driving more and more litigation, chances are this trend is likely to continue well into the future.