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Muddying the Waters: The Ninth Circuit's Conflicting Interpretation of the Telephone Consumer Protection Act

The goal of the Telephone Consumer Protection Act is simple: stop harassing robocalls.  That’s where the simplicity stops, however.  In practice, TCPA litigation is complex, existing at the intersection of wide-reaching FCC regulation and patchwork judicial interpretation that varies not only by circuit, but sometimes by district.  

To the uninitiated, TCPA litigation can be daunting, requiring not only a working knowledge of what type of conduct the law regulates, but also how it is being interpreted at any precise moment in time—sometimes not an easy thing to define. 

One of the hottest topics of late among the TCPA bar has been what type of technology constitutes an “automatic telephone dialing system.” (ATDS). (Only calls made through such “automatic” technology can be the basis for a TCPA suit).  That technology is defined under the law as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.”  

While that definition sounds straightforward, there’s sufficient play in the joints that courts have been able to expand or limit the scope of TCPA enforcement at will; the border between whether a particular piece of tech fell inside or outside of TCPA enforcement has continuously shifted.

In 2015, the FCC attempted to end the confusion.  But its interpretation was unprecedentedly expansive, extending ATDS status to any piece of tech that could be modified in a way that would allow it to satisfy the statutory definition.  That potential-based definition could have turned every smart phone capable of downloading an app into an ATDS, greatly expanding TCPA regulation. 

But in ACA Int’l v. Federal Commc’ns Comm’n, Case No. 15-1211 (D.C. Cir. 2018), the D.C. Circuit vacated the FCC’s ruling—determining that it was far too expansive and “would extend a law originally aimed to deal with hundreds of thousands of telemarketers into one constraining hundreds of millions of everyday callers.”

With the D.C. Circuit’s ruling, the pendulum began to shift in favor of TCPA defendants, and the Third Circuit quickly followed suit—similarly defining the types of technology that constitute an ATDS in Dominguez ex rel. Himself v. Yahoo, Inc., 894 F.3d 116, 120 (3d Cir. 2018).  

Such agreement rarely holds with the TCPA and, just days ago, the Ninth Circuit in San Francisco made things even fuzzier when it comes to defining an ATDS.  Concluding that the D.C. Circuit’s opinion had wiped the slate clean, the Ninth Circuit undertook its own interpretation of the TCPA and ultimately embraced an expansive definition that conflicted with the D.C. Circuit and the Third Circuit’s determinations. (The Ninth Circuit distinguished the Third Circuit’s opinion in a passing footnote). 

In the end, the Ninth Circuit’s decision provided a win for class action plaintiffs, and creates an opportunity for TCPA claims to flourish on the West Coast.  The effects of this decision will be felt immediately within that circuit.  Outside of the Ninth Circuit, the fallout is less clear.  The only certain thing is that the decision creates additional uncertainty that litigants will have to contend with while litigating their own TCPA cases—uncertainty that will persist until each of the respective circuit courts address the issue or the Supreme Court decides to step in.  Until then, litigants will face a new issue to fight over, with viable arguments on either side.  

You may read the opinion here.