Telemarketers Calling Selected Numbers Could Violate Robocall Law

By Alexis Kramer Posted Sept. 21, 2018, 4:55 PM

  • Appeals court interprets autodialer broadly under robocall law
  • Alleged robocaller loses summary judgment grant

Businesses that use machines to make unsolicited calls from a list of non-random phone numbers could violate a robocall law, a federal appeals court has ruled.

The Sept. 20 decision by the U.S. Court of Appeals for the Ninth Circuit interprets the definition of an autodialer broadly under the Telephone Consumer Protection Act, a federal law that requires express prior consent for making calls using an automatic telephone dialing system (ATDS).

The decision highlights the uncertainty surrounding the types of devices that could violate the law following another recent court ruling that tossed the Federal Communications Commission’s interpretation of an autodialer.

Plaintiff Jordan Marks sued Crunch San Diego LLC, alleging the fitness company violated the TCPA by sending three text messages through its marketing communications system.

The TCPA defines an automatic dialing system as a device with the capacity to “store or produce numbers using a random or sequential number generator” and to dial such numbers.

The lower court said Crunch’s system wasn’t an autodialer because it couldn’t generate random numbers. But autodialers aren’t limited to devices that can call numbers produced at random, the Ninth Circuit said, setting aside the lower court’s summary judgment grant to Crunch. Evidence that Crunch’s system sends texts to a stored list of numbers is enough to show it could be an autodialer, the appeals court said.

The statute’s language, although ambiguous, indicates that devices that make calls to selected numbers could violate the TCPA, the Ninth Circuit said. Autodialers that call the numbers of people who consented to receiving calls comply with the law, it said.

Expanded Scope

Courts have been struggling to define autodialers following ACA International v. FCC, in which the U.S. Court of Appeals for the District of Columbia Circuit in March struck down an FCC interpretation of the term as overbroad. A 2015 FCC order said an autodialer must have the capacity to dial from a set list without human intervention.

The D.C. Circuit had said the FCC’s interpretation could subject ordinary smartphone users to the TCPA. The Marks decision would do exactly that, Scott Goldsmith, a TCPA attorney at Dorsey & Whitney LLP, told Bloomberg Law.

“If all it takes to qualify as an ATDS is ‘the capacity to dial stored numbers automatically,’ it is diffcult to imagine a telephone on the market that does not have this capacity,” he said in an email.

Abbas Kazerounian, counsel for Marks and a TCPA attorney at Kazerouni Law Group APC, told Bloomberg Law that the court took a “common sense approach,” since modern devices don’t use random or sequential number generators. He dismissed the concern about the law sweeping in everyday smartphones.

“There’s been thousands of TCPA cases and not one has alleged that a cell phone is an ATDS,” Kazerounian said. “It’s a fantastical theory.”

Greenberg Traurig LLP, counsel for Crunch, didn’t immediately respond to a Bloomberg Law request for comment.

The case is Marks v. Crunch San Diego, LLC, 2018 BL 340373, 9th Cir., No. 14-56834, 9/20/18.

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