This week the Ninth Circuit decided to not reconsider its decision to use a broadened definition of “autodialer” when claiming that Crunch San Diego LLC of autodialed members’ cellphones with unwarranted text messages. The gym chain motioned for a rehearing – as it was decided that the system used to send these messaged qualified as an autodialer under the broad definition of the Telephone Consumer Protection Act (TCPA).
In 2014, Jordan Marks accused Crunch of violating the TCPA after he received three advertising text messages between November 2012 and October 2013 regarding special deals at the gym. In October 2014 the judge ruled that the gym’s messaging system did not violate the TCPA because it did not qualify as an autodialer, as it lacked a random or sequential number generator.
A Broadened Autodialer Definition
However, this decision was reversed this week in a unanimous vote by a three-judge Ninth Circuit panel. This comes after the case of ACA international v. FCC in March, where the court vacated the Federal Communication Commission’s definition of what qualifies as an autodialer. From there, in September TCPA turned to the 1991 definition established by Congress, which in recent months has been held as being too ambiguous.
Crunch argues that “despite ‘significant changes’ to telemarketing equipment, ‘Congress never revised the definition of an ATDS.’”
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