Crunch Petitions Ninth Circuit For En Banc Hearing in TCPA Case

The defendant in a Telephone Consumer Protection Act case that has rocked the ARM industry yesterday filed a request with the Ninth Circuit Court of Appeals seeking a full hearing before a full slate of the court’s judges in an attempt to overturn a decision about what constitutes an automatic telephone dialing system.

Crunch San Diego filed its appeal because the three-judge panel that issued its ruling last month “effectively rewrites” the TCPA “in a manner that directly conflicts with the statutory text, legislative history, and binding intra- circuit and persuasive inter-circuit authority,” according to a copy of the brief.

Last month, a three-judge panel of the Ninth Circuit unanimously ruled that Crunch violated the TCPA when it sent text messages to an individual using an ATDS without the individual’s consent. The Ninth Circuit’s ruling overturned a lower court ruling and determined that an ATDS is any device that “stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.” That definition contradicts what other courts have ruled.

A copy of the petition for an en banc hearing before the Ninth Circuit can be accessed by clicking here.

The Ninth Circuit now must decide whether it wants to re-hear arguments in the case before a larger panel of judges. For Circuits with more than 15 judges, an en banc hearing may consist of “such number of members of its en banc courts as may be prescribed by rule of the court of appeals.” According to Wikipedia, that normally means 11 judges for the Ninth Circuit Court of Appeals, which has 29 judges appointed to it.

In looking at rulings from other Circuits, such as the Third Circuit’s decision in Dominguez v. Yahoo or the Court of Appeals for the District of Columbia’s ruling in ACA International v. FCC, the three judges — who were all appointed by President George W. Bush — revived the argument that every smartphone could be considered an ATDS, the lawyers representing Crunch argued in their petition.


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