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Regulatory Proposal

FCC: Request for Comment on Ninth Circuit Decision in Marks v. Crunch San Diego, LLC re: Autodialer Definition

Comments Due: October 23, 2018 Disposition: Filed

ABA Comments & Analysis

Summary of the FCC Notice

The FCC issued a request for further comment on how it should interpret the definition of an “automatic telephone dialing system” (autodialer), in light of the Ninth Circuit’s recent decision in Marks v. Crunch San Diego, LLC. The Marks court held that a device could be an autodialer even if the device does not generate numbers in random or sequential order. Thus, under Marks, a device with the “capacity to dial stored numbers automatically” is an autodialer, including predictive dialers and even smartphones.

The Marks court’s expansive interpretation of the definition of an autodialer conflicts with the D.C. Circuit’s March TCPA decision, which struck down the FCC’s prior definition of an autodialer in part because that definition swept in ordinary smartphones. The FCC noted this conflict in its request for comment, observing that the D.C. Circuit “held that the TCPA unambiguously foreclosed any interpretation that ‘would appear to subject ordinary calls from any conventional smartphone to the [TCPA’s] coverage.’”

The initial comment deadline is October 17; reply comments are due on October 24.

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