On January 28, 2019, Crunch filed a petition for writ of certiorari in the U.S. Supreme Court, asking the Court to overturn the Ninth Circuit’s decision in Marks. In the appeal, Crunch contended that the Ninth Circuit’s interpretation of the definition of an ATDS contradicted the plain text and purpose of the statute. Specifically, the petition argued that the Ninth Circuit’s interpretation omits the statutory requirement that a telephone system use a random or sequential number generator to qualify as an ATDS in favor of a consumer-friendly definition of the phrase. The petition focused on the fact that Marks created a Circuit split as to the meaning of ATDS.
Although there was no guarantee that the Supreme Court 99 acres data would grant certiorari, many in the industry hoped that the Court would use Marks to settle the meaning of ATDS nationwide and, in turn, limit much of the TCPA litigation seen in recent years. Now that the parties have settled Marks, the decision is the law in the Ninth Circuit for the time being.
In the coming months, the FCC is expected to issue new rules on the meaning of an ATDS under the TCPA. If those rules interpret the definition of ATDS more narrowly than Marks, it will set up an interesting debate in the Ninth Circuit.
When the Ninth Circuit decided Marks, it did so in the absence of guidance from the FCC. The D.C. Circuit had vacated the FCC’s previous guidance months earlier in the ACA International case. If the FCC’s forthcoming rules conflict with Marks, which many expect, district courts in the Ninth Circuit will have to decide whether to follow the FCC or the Ninth Circuit. Or, they may avoid that debate altogether by concluding that Marks would have followed FCC guidance if it existed at the time, which would allow district courts to harmonize Ninth Circuit jurisprudence with FCC guidance.
On that last point, we expect additional guidance from the Supreme Court soon. In November 2018, the Supreme Court granted certiorari in PDR Network LLC, et al. v. Carlton & Harris Chiropractic. In that case, the Supreme Court will address how much deference district courts must give to the FCC when interpreting the TCPA. In short, the TCPA has many moving parts – from FCC Orders, to PDR Network, to the impact of Marks. Troutman Sanders will continue tracking these issues closely.