The Ninth Circuit is not going to reconsider a recent ruling that shook the world of Telephone Consumer Protection Act litigation and has thereby set the stage for a confrontation with the Federal Communications Commission’s powers over the TCPA. 

On September 21, the Ninth Circuit issued a decision in Marks v. Crunch San Diego that, while contrary to precedent in several other circuits, including the Third Circuit and D.C. Circuit, took an exceptionally broad view of what constitutes an automatic telephone dialing system (“ATDS”) regulated by the TCPA.  On October 30, the Ninth Circuit denied a petition to rehear Marks en banc, meaning that Marks will control in the Ninth Circuit, at least for now. 

One of the basic building blocks of many TCPA claims is a consumer’s allegation that he or she was called with an ATDS.  Without an ATDS, many TCPA claims fall by the wayside.  In the Marks decision, the Ninth Circuit dramatically expanded the statutory definition of ATDS and, as a result, the type of equipment that could trigger the TCPA.  We discussed the Marks decision at length in our blog here.  In short, Marks established that an ATDS is equipment that simply has the “capacity to dial stored numbers automatically,” contrary to the precedent of several other courts.

Given the breadth of the Ninth Circuit’s decision, Crunch San Diego filed a petition for rehearing en banc, arguing that the panel erred in deciding an “issue of exceptional importance.”  On October 30, the Ninth Circuit denied that petition in a short one-page order.  In its Order, the Ninth Circuit simply noted that the petition was denied because “[t]he full court has been advised of the Petition for Rehearing En Banc and no Judge has requested a vote on whether to rehear the matter en banc.” 

The Ninth Circuit’s silence is deafening in the world of TCPA litigation.  By declining to revisit Marks, the Court has adopted an interpretation of what constitutes an ATDS in conflict with multiple circuit and district court decisions – one that is sure to encourage plaintiffs to actively seek out Ninth Circuit courtrooms when filing TCPA claims.  It remains to be seen whether Crunch will appeal to the United States Supreme Court or how deeply the FCC will step into the fray.  However, the FCC is considering issuing broad new guidance on the TCPA, which could be contrary to the position of the Ninth Circuit.  If that occurs, then the legal system – at least in the Ninth Circuit – will have to decide whether the Ninth Circuit or the FCC rules here.