In Marks v. Crunch San Diego, LLC, Judge Bashant, a district court judge for the Southern District of California, found that the FCC lacks the authority to change the statutory definition of “automated telephone dialing system” (“ATDS”) under the TCPA.  Judge Bashant determined that the FCC only has rulemaking authority over sections 227(b) and (c), not section 227(a), which contains the ATDS definition.  On this basis, the Judge rejected the FCC’s commentary, which broadly interpreted the term “ATDS” as “any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.”  Instead, Judge Bashant relied on the Ninth Circuit’s statement in Satterfield v. Simon & Schuster, Inc. that the statutory definition of an ATDS is “clear and unambiguous.”

In dismissing the FCC’s interpretation, Judge Bashant found that the text messaging platform used by the defendant to send promotional text messages was not an ATDS.  Specifically, the platform at issue allowed cell phone numbers to be inputted in one of three ways:  (1) when an authorized person manually uploaded them; (2) when an individual responded to a marketing campaign via text message; or (3) when an individual listed his or her number on a website consent form.  The Judge determined that this platform lacked the present capacity to store or produce numbers to be called and to dial them.  Specifically, Judge Bashant reasoned that all three methods for entering numbers into the system require human intervention, and thus the system is not a “random or sequential number generator.”  In addition, the Judge stated that the system does not have the potential capacity to become an ATDS because numbers cannot be added to the platform without either a user response or written consent.

The Marks opinion is noteworthy for three reasons.  First, it restricts the definition of an ATDS to the statutory language of the TCPA:  Equipment that “has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”  Second, it provides clear guidance regarding what can be construed as an ATDS by finding that a system requiring human intervention to input numbers does not violate the TCPA.  Finally, by relying on consumer consent to defeat the assertion that the system could become an ATDS, the Court reinforced the importance of businesses obtaining consumer consent to dial cell phone numbers.