A fitness company is asking the U.S. Supreme Court to weigh in on the type of equipment businesses can use to send robocalls.
Crunch San Diego LLC petitioned the high court to review a ruling by the U.S. Court of Appeals for the Ninth Circuit that held devices that make calls to selected numbers can be autodialers under the Telephone Consumer Protection Act. The TCPA restricts the use of autodialers in telemarketing.
Courts have split over how to define “autodialer” after the U.S. Court of Appeals for the District of Columbia Circuit scrapped the Federal Communications Commission’s latest interpretation of the term in March 2018. The FCC has yet to issue new guidance on the issue.
The Ninth Circuit’s decision conflicts with the D.C. Circuit’s opinion and “threatens hundreds of millions of smartphone users with crippling TCPA statutory-damages liability,” Crunch wrote in its Jan. 28 petition.
The case centers around claims by gym member Jordan Marks that Crunch violated the law by sending him three unsolicited text messages through its communications system. The Ninth Circuit said autodialers aren’t limited to devices that can call numbers at random, reversing the lower court’s summary judgment grant to Crunch.
The TCPA defines an autodialer as a device that can store or produce, and dial random or sequential numbers. The plain text of the law says an autodialer must be capable of more than just dialing stored numbers, Crunch said in its petition.
The Ninth Circuit’s interpretation “makes mincemeat of the statutory language,” the company said.
Crunch said that the appeals court’s expansive reading of the law sweeps in commonplace smartphones and could subject millions of users to lawsuits seeking damages of at least $500 per call.
Greenberg Traurig LLP is representing Crunch. Kazerouni Law Group APC is representing Marks.
“We will be opposing the cert petition,” Abbas Kazerounian, an attorney at Kazerouni Law Group, told Bloomberg Law in an email. “We believe that the 9th Circuit got it right.”
The case is Crunch San Diego LLC v. Marks, U.S., petition for review filed 1/28/19.
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(Updated with comment from an attorney for Marks. )