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September 21, 2018

Ninth Circuit “Departs” From Other Rulings, Takes Expansive View of Autodialers

A Ninth Circuit Telephone Consumer Protection Act (TCPA) decision yesterday broadened the definition of “automatic telephone dialing system” (ATDS) despite recent rulings that reined it in, The Recorder reports.

Crunch Fitness was accused of sending mass text messages with an autodialing system. However, the company said the system it used was not an ATDS since it did not have a random or sequential number generator, nor the potential to add that capacity. The three-judge panel, though, used a broader definition of ATDS, and ruled that they not only generate numbers randomly or sequentially, but have “the capacity to dial stored numbers automatically.”

An attorney for Crunch Fitness pointed to two recent rulings that are seemingly at odds with the Ninth Circuit. The Third Circuit in June ruled a system had to have the potential to randomly or sequentially generate numbers to be considered an ATDS. The D.C. Circuit this year also struck down a broad definition from the Federal Communications Commission. The attorney said the Ninth Circuit ruling “revives part of the very same overly broad interpretation of what constitutes an ATDS that was rejected … as arbitrary and capricious.”

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