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FCC Seeks Comment on Ninth Circuit’s Expansive TCPA Interpretation in Marks

Yesterday, the FCC released a Public Notice seeking comment on a recent decision issued by the U.S. Court of Appeals for the Ninth Circuit in Marks v. Crunch San Diego, LLC, No. 14-56834 (Sept. 20, 2018).  The Public Notice, issued in the context of the FCC’s Telephone Consumer Protection Act (TCPA) reform proceeding, seeks comment on how the FCC should interpret the phrase “automatic telephone dialing system” (ATDS) as that term is used in the TCPA.  In seeking comment, the FCC noted the tension between Marks and the interpretation of that same statutory provision by the U.S. Court of Appeals for the D.C. Circuit in ACA Int’l v. FCC, 885 F.3d 687 (2018).  We previously discussed the ACA Int’l decision here.

In Marks, the Ninth Circuit examined the TCPA’s definition of an ATDS, which is defined in the statute as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator.”  The court found that whether the clause “using a random or sequential number generator” applies to both storing and producing telephone numbers to be called is ambiguous, and it concluded that this clause applies only to “producing” telephone numbers to be called.  The Ninth Circuit therefore concluded that the definition of an ATDS includes equipment that has the capacity to automatically dial stored numbers—regardless of whether a random or sequential number generator is used.

The Ninth Circuit’s decision in Marks can be viewed as conflicting with the D.C. Circuit’s conclusion in ACA Int’l.  In that case, the D.C. Circuit vacated the FCC’s 2015 interpretation of the definition of an ATDS (which was similar to the Ninth Circuit’s) as unreasonably broad.

Comments responding to the FCC’s public notice are due October 17, 2018, with reply comments due October 24, 2018.

© 2022 Covington & Burling LLPNational Law Review, Volume VIII, Number 277

About this Author

Rafael Reyneri, Covington, communications attorney

Rafael Reyneri is an associate in the firm’s Washington, DC, office. He is a member of the Communications and Media and Data Privacy and Cybersecurity practice groups. Before joining the firm, he clerked for Judge Andre Davis on the U.S. Court of Appeals for the Fourth Circuit and Judge Margo Brodie on the U.S. District Court for the Eastern District of New York. Prior to law school, he was a Legislative Assistant for Congressman Jared Polis.

Previous Experience

  • Federal Communications Commission, Wireless Bureau, Legal Intern
  • Office of...
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