Jordan Marks v. Crunch San Diego, LLC
904 F.3d 1041
| 9th Cir. | 2018Background
- Plaintiff Jordan Marks received three promotional texts from Crunch Fitness sent via the Textmunication web-based platform and sued under the TCPA §227(b) alleging texts were sent using an ATDS.
- Textmunication stores phone numbers (manually entered, via replies, or via web forms), lets a user select recipients, compose a message, schedule a send time, and then automatically sends the texts.
- The district court granted summary judgment for Crunch, concluding Textmunication was not an ATDS because it lacked a random or sequential number generator and could not be upgraded to one.
- The D.C. Circuit’s decision in ACA International invalidated key FCC interpretations (from the 2015 Declaratory Ruling) about the scope of ATDS, requiring courts to interpret the statutory definition anew.
- The Ninth Circuit interpreted §227(a)(1) and held that an ATDS includes equipment that (1) stores numbers to be called or (2) produces numbers using a random or sequential number generator, and dials those numbers automatically (human initiation of a campaign does not defeat automatic dialing).
- Because genuine factual disputes exist about whether Textmunication stores and automatically dials numbers, the Ninth Circuit vacated summary judgment and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an ATDS must generate numbers using a random or sequential number generator | Marks: the statute should be read to cover devices that can store numbers and then dial them (i.e., stored lists qualify) | Crunch: the modifying phrase “using a random or sequential number generator” applies to both “store” and “produce,” so only devices that store numbers produced by such a generator qualify | Court: statutory text ambiguous; reads §227(a)(1) to cover either (1) storing numbers to be called or (2) producing numbers using a random/sequential generator, and dialing them |
| Whether an ATDS must operate entirely without human intervention | Marks: system dials automatically once triggered, so qualifies | Crunch: device must be fully automatic with no human involvement to qualify | Court: ATDS targets automatic dialing capability; some human initiation/oversight (e.g., selecting list, scheduling) does not defeat ATDS status |
| Whether FCC’s 2015 Declaratory Ruling controls interpretation of ATDS | Marks: relied on FCC interpretations pre-ACA | Crunch: relied on FCC rulings too | Court: ACA International vacated the FCC’s expansive 2015 interpretations; courts must interpret the statute itself without deference to those aspects of the FCC order |
| Whether summary judgment was appropriate on these facts | Marks: Textmunication stores numbers and sends automatically; expert testimony creates dispute | Crunch: no generator; district court found no genuine dispute | Court: genuine issue of material fact exists whether Textmunication is an ATDS; vacated summary judgment and remanded |
Key Cases Cited
- ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (vacating FCC’s expansive 2015 Declaratory Ruling on ATDS capacity)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (TCPA applies to text messages)
- Dominguez ex rel. v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018) (interpreting ATDS scope; court’s published reasoning found unpersuasive here)
- King v. Time Warner Cable Inc., 849 F.3d 473 (2d Cir. 2017) (discusses effect of ACA International on FCC deference)