Kazerouni Law Group Receives Landmark TCPA Ruling From 9th Circuit

In a major victory for consumer TCPA litigation, the 9th Circuit ruled Thursday on a key statutory definition within the TCPA that governs how autodialing telephones are regulated.


The Telephone Consumer Protection Act, enacted in 1991, was created to protect consumers from harassing or unwanted telemarketing that had become endemic by the late 80's. Within that legislation is a specific prohibition on companies using "Automatic Telephone Dialing Systems" (ATDS), or auto-dialers, to call consumers without their prior express consent. The definition of what constitutes an ATDS has been battled over for years, and the recent case of FCC vs ACA Int'l whittled down the prohibition to only apply to ATDS that use a random or sequential number generator to dial the numbers.


In our case, Marks v Crunch San Diego, our client received several unsolicited text messages from Crunch Fitness, which was in our view a clear violation of the TCPA. The District Court held that the automatic text messaging system that had sent the messages was not an ATDS under the TCPA, becuase it lacked the capacity "to store or produce telephone numbers to be called, using a random or sequential number generator". We appealed this decision to the US 9th Circuit of Appeals.


The 9th Circuit, in a 3-0 decision, concluded that "the statutory definition of ATDS includes a device hat stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator". In layman's terms, any telephone system that stores lists of telephone numbers to be dialed or texted qualifies as an ATDS, and prior consent is needed from you before companies can use it to call or text you.


How does this effect the average consumer? The protections given to you by the TCPA are important, safeguarding both your privacy and peace of mind. Recently, those protections have been eroded in court cases such as ACA Int'l, and this 9th Circuit decision represents an important step in shifting the balance of power back to consumers and away from aggressive telemarketers.