Getting Robocalled Without Consent? The Telephone Consumer Protection Act can help says an important federal court

One of the most frequently litigated issues today is whether a robocall to a cellphone involves an autodialer and thus violates the Telephone Consumer Protection Act (TCPA) if it is made without the consent of the called party. The TCPA is the main bulwark against the onslaught of robocalls to Americans’ cellphones, and, with statutory damages of $500 for each robocall ($1500 if willful and knowing), it provides powerful remedies for consumers.

A broad definition of “autodialer” (technically, “automatic telephone dialing system” or ATDS) is essential to give teeth to the TCPA. A recent Ninth Circuit decision in Marks v. Crunch San Diego, L.L.C., ___ F.3d ___, 2018 WL 4495553 (9th Cir. Sept. 20, 2018), is a critical new precedent for a broad interpretation of autodialer.

In Marks v. Crunch San Diego, L.L.C., ___ F.3d ___, 2018 WL 4495553 (9th Cir. Sept. 20, 2018), the Ninth Circuit interpreted the statutory definition of an autodialer to encompass any device that dials numbers from a stored list—including the predictive dialers that most robocallers use today. The decision focuses on the role of the word “store” in the statutory definition—a question that no other court had addressed in any detail. The decision supports its conclusion with a meticulous analysis of the ways in which a narrower reading of the definition would be inconsistent with other TCPA provisions.