Despite the Federal Communications Commission currently deliberating as to the meaning of “autodialer” under the Telephone Consumer Protection Act, a California federal judge found that the Ninth Circuit has resolved the issue, denying a defendant’s attempt to pause a spam-text suit. Not only does the ruling by U.S. District Judge Haywood S. Gilliam Jr. counter recent decisions staying complaints to wait for the FCC to finish its consideration of the meaning of “autodialer,” but Judge Gilliam’s ruling specifically allowed a class action case, Izor v. Abacus Data Systems, Inc., case number 4:19-cv-01057, in the U.S. District Court for the Northern District of California, to continue against Abacus—a company that sells software to attorneys, accountants, and others. 

On August 5, Judge Gilliam ruled that the Ninth Circuit’s decisions in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), and Duguid v. Facebook, 926 F.3d 1146 (9th Cir. 2019), already defined what an “autodialer” is, regardless of the FCC’s position at this time, rendering the issue in Izor not particularly novel or complicated. 

The FCC solicited public comment on the meaning of “autodialer” in May 2018 after the D.C. Circuit struck down an FCC ruling from 2015 in ACA International v. Federal Communications Commission et al., 885 F.3d 687 (D.C. Cir. 2018), that broadly interpreted the term. However, despite the instability around the meaning of “autodialer,” the Ninth Circuit has pressed forward with ruling on the issue. 

In 2018, the Ninth Circuit in Marks ruled that an “autodialer” encompassed “equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically (even if the system must be turned on or triggered by a person).” Marks, 904 F.3d at 1053. The Court reiterated that determination in June 2019, in Duguid. Since Marks, there have been a number of other District Courts to reject the rationale set forth by the Ninth Circuit, including the Northern District of Texas and the Eastern District of North Carolina. 

Abacus tried to assert that the FCC’s solicitation of public comment on what an “autodialer” is showed that a definition of the term is clearly not set in stone and that the FCC’s input was necessary to proceed with Izor. Judge Gilliam did not agree, stating that the Ninth Circuit’s ruling in Marks was binding, controlling authority, thereby settling the issue. Thus, without waiting for FCC guidance, the Ninth Circuit decided that the definition of “autodialer” is “no longer a matter of first impression and … not a ‘particularly complicated issue’” that warranted pausing the litigation, especially in light of the reaffirmation of Marks in a subsequent case by the Ninth Circuit this year. 

Troutman Sanders LLP will continue to monitor developments in the definition of “autodialer” by the FCC, application of the definition in the Ninth Circuit, and if there is any conflict between the two as they arise.