Ninth Circuit Will Not Revisit Marks En Banc
The Ninth Circuit yesterday denied a petition to re-hear en banc the panel decision in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018). In Marks, the court held that a “web-based marketing platform designed to send promotional text messages to a list of stored telephone numbers” counts as an ATDS. That is, the ability to communicate automatically from a stored list of numbers, even without employing a random or sequential number generator, may trigger TCPA liability. Marks is one of the first major court decisions examining the definition of an ATDS since the D.C. Circuit invalidated much of the FCC’s prior interpretations. By denying the request for rehearing, the case may be positioned now for potential Supreme Court review.
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