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TCPA: Ninth Circuit Court Expands the Definition of an Autodialer

On September 20, 2018, the Ninth Circuit Court of Appeals, issued a written opinion in the case of Jordan Marks v. Crunch San Diego, LLC, Case #14-56834. A copy of the opinion can be found here. The primary issue before the court was the definition of an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).

This opinion is the first written opinion by a Federal Circuit Court since the D.C. Circuit struck down the FCC’s definition of an ATDS earlier this year in its opinion, ACA Int’l v. Fed. Communication Commission 885 F.3d 687 (D.C. Circ. 2018). After the D.C. Circuit struck down the FCC’s broad definition of an ATDS, defense lawyers and business leaders hoped that the FCC and other courts would adopt a more restrictive definition.

Unfortunately, the Ninth Circuit defined an ATDS as “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).” Under the court’s expanded definition, if a phone system can store numbers and then dial such numbers automatically, even if triggered by a person, the system is an ATDS and subject to the TCPA.

While the 9th Circuit has jurisdiction in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and its decision is not binding on courts in other parts of the country, this decision will most likely be used by Plaintiff’s counsel to continue to pursue claims under the TCPA. If more courts adopt this expanded definition of an ATDS, most modern business telephone systems will be considered an ATDS. While the definition of an ATDS continues to be a heavily litigated issue, Credit Unions can avoid the concern by making sure that calls placed to consumers are made in compliance with the TCPA. Compliance with the TCPA is best accomplished by having valid written consent from the consumer and maintaining a sound procedure and process to track when a consumer revokes consent.

Please note that this communication is meant to inform and educate our clients and should not be relied upon as a substitute for legal advice as to a specific situation. Should you have any questions, please do not hesitate to contact one of our attorneys at Sorenson Van Leuven, PLLC.