The defendant in a TCPA class action filed a petition for a writ of certiorari with the Supreme Court. Crunch San Diego, LLC v. Marks, No. 18-995 (Jan. 28, 2019). The defendant-petitioner, Crunch San Diego, had used a web-based system to send promotional text messages to a list of stored telephone numbers at a time selected by the gym. It is undisputed that the system did not use a random or sequential number generator. The District Court for the Southern District of California granted summary judgment in favor of Crunch. The 9th Circuit reversed, ruling that an ATDS includes devices with the capacity to automatically dial stored telephone numbers, whether or not a random or sequential number generator was used.

Crunch makes three arguments in its petition. First, the TCPA’s plain text requires that an ATDS use a random or sequential number generator. Petition at 14-15. The definition of an ATDS states that it must have the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator.” 47 U.S.C. § 227(a)(1). Crunch contends that, according to established principles of statutory construction, the comma separating “using a random or sequential number generator” indicates that the clause modifies both “store” and “produce,” not only the immediately preceding phrase (i.e., “produce”).

Second, Congress’s purpose in enacting the TCPA was to restrict telemarketing that used an ATDS. Petition at 18. It did not intend to restrict all forms of telephone solicitation or all technology that may be used to facilitate such solicitations. Crunch argues that smartphones may fall within the 9th Circuit’s definition of an ATDS because they have the capacity to make automatic calls from lists of recipients. Id. at 12 (citing ACA Int’l v. Federal Commc’ns Cmm’n, 885 F.3d 687, 698 (D.C. Cir. 2018)). Therefore, most Americans are or could be TCPA violators.

Third, the Supreme Court should grant the petition because the 9th Circuit knowingly created a circuit split with the Third Circuit, which held that an ATDS requires the use of a random or sequential number generator. Id. at 8-9; Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018)). Additionally, the 9th Circuit conflicts with the D.C. Circuit, which rejected the Federal Communication Commission’s interpretation of the TCPA that would have caused every smartphone user to violate the TCPA by using the device as intended. Petition at 12.