Back in September when the Ninth Circuit issued its Marks v. Crunch San Diego LLC, insideARM mentioned in its iA Perspective that if the Federal Communications Commission (FCC) did not act quickly to provide guidance on the Telephone Consumer Protection Act (TCPA) -- specifically on the definition of an automatic telephone dialing system (ATDS) -- then the U.S. Supreme Court might get the first stab. Well, all signs point toward Supreme Court review.

Yesterday, Crunch filed a petition for writ of certiorari with the Supreme Court, which is a request for the court to hear the case. The decision for the Supreme Court to review cases is not a right, but rather is at the Supreme Court’s discretion.

Editor’s Note: Here’s a fun piece of trivia. While we are all accustomed to calling this case Marks v. Crunch, the name of the case before the Supreme Court is now flipped to Crunch v. Marks due to the Supreme Court's naming mechanism and Crunch being the petitioner.

The question presented in the petition is:

Whether the Ninth Circuit erred in expanding the TCPA’s definition of “automatic telephone dialing system” -- in acknowledged conflict with the Third Circuit and in stark tension with the D.C. Circuit -- to encompass any device with capacity merely to dial stored telephone numbers.

In Marks, the Ninth Circuit found that a device with the capacity to store telephone numbers falls into the TCPA’s definition of ATDS, regardless of its ability to randomly and sequentially generate and dial numbers. The Third Circuit decision referenced in the question presented is Dominguez v. Yahoo, Inc., where the court ruled that a device needs to have the present ability to randomly or sequentially generate numbers and dial them in order to qualify as an ATDS. Since these definitions are in direct conflict, a jurisdictional split exists.

The Ninth Circuit denied Crunch’s petition for rehearing en banc, which would have had all of the Ninth Circuit judges -- rather than just a three-judge panel -- review the case.

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insideARM Perspective

Well, folks, we might be headed toward Supreme Court review. Many factors favor the Supreme Court’s acceptance of the case: the circuit split, the widespread impact of the issue, and the FCC not yet providing guidance.

We have long been waiting for the FCC to provide clarity on the TCPA. On the same day that the Marks decision came out (although it is uncertain which came first), the FCC’s Chairman Ajit Pai sent response letters to several congressional representatives agreeing that TCPA clarity is needed and that this was on the FCC’s radar. After Marks was released, the FCC sought comments on how to interpret the definition of an ATDS in light of the circuit split. The comments were submitted in late October and not much has been heard since. Earlier in January, the FCC closed up shop for many of its non-essential functions during the federal government shutdown, which likely causing further delay.

Whether or not the FCC is waiting to see if the Supreme Court would take up the issue, we don’t know. We also don’t know whether the Supreme Court would prefer to wait for FCC guidance prior to making a decision, thus potentially denied the petition. Sounds like we have to wait and see for a little bit longer.


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