The Federal Communications Commission (FCC) has issued a notice asking for comment on what constitutes an automatic telephone dialing system (ATDS) under the TCPA following the Ninth Circuit’s September 20, 2018 decision in Marks v. Crunch San Diego.  In May 2018, the FCC issued a notice announcing that it was seeking comments on several TCPA issues following the D.C. Circuit’s decision in ACA International v. FCC.  The FCC’s new notice states that it is now seeking comment “to supplement the record developed in response to our prior Public Notice.”  Comments are due by October 17, 2018 and reply comments are due by October 24, 2018.

In Marks, a unanimous Ninth Circuit three-judge panel held that the TCPA’s definition of an ATDS includes telephone equipment that can automatically dial phone numbers stored in a list, rather than just phone numbers that the equipment randomly or sequentially generates.  This decision departed sharply from the post-ACA International decisions by the Second and Third Circuits, which had narrowed the definition of an ATDS.

The TCPA defines an ATDS as equipment that “has the capacity—(1) to store or produce telephone numbers to be called, using a random or sequential number generator; and (2) to dial such numbers.”  The Ninth Circuit concluded that the statutory definition of an ATDS was “ambiguous on its face” regarding whether it is limited to devices with the capacity to call numbers produced by “a random or sequential number generator” or also includes devices with the capacity to store numbers and to dial such numbers automatically.

In its notice, the FCC states that the ACA International court “held that the TCPA unambiguously foreclosed any interpretation of the TCPA that ‘would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage.’”  The FCC raises the following series of questions in an effort to obtain further comment on how to apply the ATDS statutory definition in light of Marks and “how that decision might bear on the analysis set forth in ACA International”:

• To the extent the ATDS definition is ambiguous, how should the FCC exercise its discretion to interpret such ambiguities?

• Does the Marks interpretation mean that any device with the capacity to dial stored numbers automatically is an ATDS?

• What devices have the capacity to dial stored numbers and do smartphones have such capacity?

• What devices that have the capacity to dial stored numbers also have the capacity to automatically dial such numbers and do smartphones have such capacity?

The FCC also asks for comment on any other issues addressed in Marks that it should consider in interpreting the ATDS definition.