A Step Backwards for the TCPA?
According to Nixon Peabody, “The Ninth Circuit considers the scope of the TCPA, highlighting the dynamic nature of interpretations of the statute, and the need for businesses to ensure that they are TCPA-compliant when contacting consumers directly.”
As a result of their authority on the subject, rulings coming out of the Ninth Circuit are highly anticipated. In Marks v. Crunch San Diego, the Ninth Circuit made a decision that may have a profound impact on the definition of an ATDS going forward.
As with most TCPA regulations litigation, the plaintiff alleged he had received text messages unlawfully. This case helps to further clarify the definition of an ATDS; as well as steer agencies in the right direction to avoid a lawsuit.
The case starts as many TCPA cases do. The plaintiff alleges three text messages he received from Crunch Fitness (defendant) violate the TCPA.
The case had previously been brought to the Southern District of California. In that courtroom, District Judge Cynthia Bashant granted summary judgment to the defendant. The texting system Crunch used, she said, was not an ATDS. Since it lacked a random or sequential number generator and didn’t have the potential to add that capacity, it didn’t fit the definition. She based this on previous decisions such as Sirius XM.
Judge Sandra Ikuta and the other two judges on the panel didn’t hold the same opinion.
Ikuta found there was language in the TCPA regulations that indicated it was meant to cover “equipment that made automatic calls from lists of recipients.” She also concluded that devices that qualify as an ATDS still must operate with some kind of human input.
“Common sense indicates that human intervention of some sort is required before an ATDS can begin making calls, whether turning on the machine or initiating its functions,” she wrote.
As a result, the panel of Judges found the defendant did indeed violate the TCPA regulations.
Ikuta, Callahan and Bea are among the most conservative judges on the Ninth Circuit, according to the plaintiff’s lawyer, as well as “finely attuned to the statutes and to the implications of this case.”
What You Need to Know
It is expected that the case may be brought to the Supreme Court as a result of the severe implications this holds for high volume call software users.
“Under this ruling, even a mobile phone could be an ATDS, which the D.C. Circuit expressly held ‘untenable,’” the defendant’s lawyer Ian Ballon wrote. Indeed, this case revives the argument of a much too broadly interpreted definition of an autodialer that could spell chaos in the collections industry.
In the meantime, if you have the means to do so, it might be time to seriously consider a compliant solution to high volume dials. One option is Arbeit Click, a software that eliminated the 3 second pause, adds three levels of human intervention to every dial with volume based pricing and can accommodate 200 caller per hour, per agent. They offer a week-long free trial – Click here to learn more.