Jordan Marks, individually and on behalf of all others similarly situated, Plaintiff-Appellant,
Crunch San Diego, LLC, Defendant-Appellee.
and Submitted December 6, 2016
Submission Vacated December 14, 2016
Resubmitted September 13, 2018 Pasadena, California
from the United States District Court for the Southern
District of California Cynthia A. Bashant, District Judge,
Presiding D.C. No. 3:14-cv-00348-BAS-BLM
Abbas Kazerounian (argued) and Jason A. Ibey, Kazerouni Law
Group APC, Costa Mesa, California; Joshua B. Swigart, Hyde
& Swigart, San Diego, California; for
Ballan (argued), Lori Chang, Nina D. Boyajian, and Justin A.
Barton, Greenberg Traurig LLP, Los Angeles, California, for
Dvoretzky, Jeffrey R. Johnson, and Vivek Suri, Jones Day,
Washington, D.C., for Amicus Curiae Sirius XM Radio Inc.
Melendez, Barnes & Thornburg LLP, Minneapolis, Minnesota,
for Amicus Curiae ACA International.
T. Rossman and Carolyn Carter, National Consumer Law Center,
Boston, Massachusetts; Ira Rheingold, National Association of
Consumer Advocates, Washington, D.C.; for Amici Curiae
National Consumer Law Center and National Association of
Before: Consuelo M. Callahan, Carlos T. Bea, and Sandra S.
Ikuta, Circuit Judges.
Consumer Protection Act
panel vacated the district court's grant of summary
judgment to the defendant on a claim under the Telephone
Consumer Protection Act, which places restrictions on the use
of automated telephone equipment.
plaintiff alleged that three text messages that he received
from the defendant violated the TCPA. The district court held
that the automatic text messaging system that had sent the
messages was not an automatic telephone dialing system
("ATDS") under the TCPA because it lacked the
present or potential capacity "to store or produce
telephone numbers to be called, using a random or sequential
number generator." After the district court ruled, the
D.C. Circuit issued its opinion in ACA Int'l v. Fed.
Comm'cns Comm'n, 885 F.3d 687 (D.C. Cir. 2018),
invalidating the FCC's interpretation of questions raised
by the statutory definition of an ATDS.
panel held that, in light of ACA Int'l, and
based on its own review of the TCPA, the statutory definition
of an ATDS includes a device that stores telephone numbers to
be called, whether or not those numbers have been generated
by a random or sequential number generator. The panel
remanded the case for further proceedings.
Marks appeals the grant of summary judgment to Crunch Fitness
on his claim that three text messages he received from Crunch
violated the Telephone Consumer Protection Act (TCPA), 47
U.S.C. § 227. The district court held that the automatic
text messaging system that had sent the messages was not an
automatic telephone dialing system (ATDS) under the TCPA,
because it lacked the present or potential capacity "to
store or produce telephone numbers to be called, using a
random or sequential number generator." Id.
§ 227(a)(1). In light of the D.C. Circuit's recent
opinion in ACA International v. Federal Communications
Commission, 885 F.3d 687 (D.C. Cir. 2018) (which was
decided after the district court ruled), and based on our own
review of the TCPA, we conclude that the statutory definition
of ATDS includes a device that stores telephone numbers to be
called, whether or not those numbers have been generated by a
random or sequential number generator. Therefore, we reverse
the district court's grant of summary judgment.
early 1990s, telemarketing was in its golden age.
Telemarketing sales had "skyrocketed to over $435
million in 1990," which was a "fourfold increase
since 1984." 137 Cong. Rec. S16, 971 (daily ed. June 27,
1991) (statement of Rep. Pressler). "This marketing
success ha[d] created an industry in which over 300, 000
telemarketing solicitors call[ed] more than 18 million
Americans every day." Id. In part, this was due
to the advent of machines that "automatically dial a
telephone number and deliver to the called party an
artificial or prerecorded voice message." S. Rep. No.
102-178, at 2 (1991). Advertisers found these autodialers
highly efficient because they could "ensure that a
company's message gets to potential customers in the
exact same way, every time, without incurring the normal cost
of human intervention." H.R. Rep. No. 102-317, at 6
(1991). At that time, a single autodialer could cause as many
as 1, 000 phones to ring and then deliver a prerecorded
message to each. Id. at 10.
dark side of this success story caught Congress's
attention. As Senator Fritz Hollings complained,
"[c]omputerized calls are the scourge of modern
civilization. They wake us up in the morning; they interrupt
our dinner at night; they force the sick and elderly out of
bed; they hound us until we want to rip the telephone right
out of the wall." 137 Cong. Rec. S16, 205 (daily ed.
Nov. 7, 1991) (statement of Sen. Hollings). Recipients deemed
that "automated telephone calls that deliver an
artificial or prerecorded voice message are more of a
nuisance and a greater invasion of privacy than calls placed
by 'live' persons." S. Rep. No. 102-178, at 4.
Among other reasons, "[t]hese automated calls cannot
interact with the customer except in preprogrammed ways, do
not allow the caller to feel the frustration of the called
party" and deprive customers of "the ability to
slam the telephone down on a live human being."
Id. at 4 & n.3 (citation omitted). Congress also
noted surveys wherein consumers responded that the two most
annoying things were (1) "[p]hone calls from people
selling things" and (2) "phone calls from a
computer trying to sell something." H.R. Rep. No.
102-317, at 9.
volume of automated telemarketing calls was not only an
annoyance but also posed dangers to public safety. S. Rep.
No. 102-177, at 20 (1991). "Due to advances in
autodialer technology," the machines could be programmed
to call numbers in large sequential blocks or dial random
10-digit strings of numbers. Id. This resulted in
calls hitting hospitals and emergency care providers
"and sequentially delivering a recorded message to all
telephone lines." Id. And because some
autodialers would "not release [the line] until the
prerecorded message is played, even when the called party
hangs up," H.R. Rep. No. 102-317, at 10, there was a
danger that the autodialers could "seize" emergency
or medical assistance telephone lines, rendering them
inoperable, and "dangerously preventing those lines from
being utilized to receive calls from those needing emergency
services," H.R. Rep. No. 101-633, at 3 (1990).
Representative Marge Roukema noted that it was "not just
calls to doctors' offices or police and fire stations
that pose a public health hazard." 137 Cong. Rec. H35,
305 (daily ed. Nov. 26, 1991) (statement of Rep. Roukema).
She recounted "the sheer terror" of a New York
mother who, when she tried to call an ambulance for her
injured child, "picked up her phone only to find it
occupied by a computer call that would not disconnect."
Id. at 35, 305-06.
light of these and other concerns, Senator Hollings
introduced a bill to amend the Communications Act of 1934, in
order to "protect the privacy interests of residential
telephone subscribers by placing restrictions on unsolicited,
automated telephone calls to the home and to facilitate
interstate commerce by restricting certain uses of facsimile
(fax) machines and automatic dialers." S. Rep. No.
102-178, at 1. This bill became the Telephone Consumer
Protection Act of 1991.
originally enacted, the TCPA placed restrictions on the use
of automated telephone equipment, including automatic
telephone dialing systems and telephone facsimile machines.
The statute defined ...