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California Court Applies Broad Definition of ATDS from Marks

The Tower Bridge in Sacramento, CA

Tue, 10/01/2019 - 13:49

A new decision by the Eastern District of California made use of the Ninth Circuit’s broad definition of what constitutes an automatic telephone dialing system (ATDS) from last year’s Marks v. Crunch San Diego decision. The Court’s decision to grant the plaintiff’s motion for summary judgement in a new case provides further evidence of the significant precedent of the Marks definition of an ATDS as a system “with the capacity to dial stored numbers automatically.”

The facts of the case—Lamkin v. Portfolio Recovery Assocs., 2019 U.S. Dist. LEXIS 165820 (E.D. Cal. Sep. 25, 2019)—are straightforward. The plaintiff fell behind in her payments on a Wells Fargo credit card and her debt was purchased by the defendant. The defendant found the plaintiff’s contact information through the use of “skip tracing” and called her 199 times with an Avaya Proactive Contact Technology dialer. The plaintiff sued, alleging violations of the Telephone Consumer Protection Act (TCPA), claiming that the defendant did not have her prior express consent to make these calls.

The defendant did not offer evidence that it had proper consent to call the plaintiff but, rather, argued that its Avaya dialing system did not meet the definition of an ATDS. In support of this argument, the defendant cited an older Ninth Circuit decision—2009’s decision in Satterfield v. Simon & Schuster, Inc.—that more narrowly defined an ATDS as a device that must have the capacity to generate random or sequential numbers and dial them.

The District Court did not accept this line of argument, finding that the Satterfield and Marks decisions were not in conflict with one another. The Court determined that Satterfield’s 2009 decision interpreted the definition of an ATDS from the FCC’s 2003 Order, which was later vacated by the D.C. Circuit’s 2018 decision in ACA International. The District Court also noted that a version of the argument that Marks conflicted with Satterfield was a part of the Marks defendant’s unsuccessful appellate petition for rehearing en banc—a petition that was unanimously denied by the Ninth Circuit.

This decision is notable in that it centered on arguments regarding the broad Marks definition of an ATDS compared to the more narrow definitions of earlier precedents. As such, it further affirms that broad definition for anyone under the jurisdiction of the Ninth Circuit.