CBA Comment Letter re Interpretation of the TCPA in Light of the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC Decision

October 17, 2018


VIA Electronic Submission

Ms. Marlene H. Dortch, Secretary

Federal Communications Commission

44 12th Street SW

Washington, D.C., 20554


Re: Comments on Interpretation of the Telephone Consumer Protection Act in Light of the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC Decision, CG Docket No. 18-152.


Dear Ms. Dortch,                                                                                                            


The Consumer Bankers Association (“CBA”) appreciates the opportunity to respond to the Federal Communication Commission’s (“Commission”) Public Notice regarding the Interpretation of the Telephone Consumer Protection Act in Light of the Ninth Circuit’s Decision in Marks, CG Docket No. 18-152. As a co-petitioner in ACA International v. FCC, we are surprised by the Ninth Circuit’s recent decision in Marks v. Crunch San Diego, and troubled by its potential implications. Still, CBA and our members remain vigilant in our pursuit of better laws built to protect the necessary and desired communications our members make on a daily basis, and appreciate the Commission’s continued efforts on this front.


Customers utilize many useful communications with their financial institutions through calls and texts ranging from low balance notifications to repayment counseling, among other important notices and alerts. CBA’s members communicate with their customers to enhance their customers’ financial well-being, while helping customers avoid financial crimes and hardship. CBA members seek to better serve their customers in every way possible, and more effective means of communication is a key part of enhancing that relationship.


In light of the D.C. District Court of Appeal’s decision in ACA Int’l v. FCC, the Commission has a great opportunity to help address many of the concerns consumers and businesses alike have with the arduous TCPA rules. CBA finds the Ninth Circuit’s recent decision troubling as it operates contrary to many of the principles espoused in the ACA Int’l case, as well as recent cases from the Second and Third Districts shedding more light on what constitutes an Automatic Telephone Dialing System (“ATDS”).


While we value this opportunity for further comment on the issue, CBA notes that the original purpose of the TCPA, to curb telemarketing calls and unwanted communications to unwilling consumers, is upheld. To this end, CBA recommends the Commission consider the items herein.


Why the Ninth Circuit Ruled Incorrectly in Marks


The D.C. Circuit vacated the Commission’s interpretation of an ATDS in ACA Int’l v. FCC, holding that the Commission’s interpretation was “utterly unreasonable,” “incompatible with” the statute’s goals, and “impermissively expansive”, and essentially, made everyone a “TCPA violator in waiting”. The recent Marks decision from the Ninth Circuit adheres to the principles rejected in ACA Int’l, leaving millions of consumers potentially liable for TCPA violations due to the technology currently housed on their cell phones.


The Ninth Circuit’s reading contrasts with the reading in ACA Int’l. In ACA Int’l, the D.C. Circuit court held that the TCPA unambiguously foreclosed any interpretation of an ATDS that “would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage.” The Ninth Circuit’s overly-broad decision strayed from ACA Int’l, and the TCPA when the Ninth Circuit declared that technologies with the capabilities to store telephone numbers and dial from stored list constitute an ATDS. The Ninth Circuit’s logic opens this use up to arduous TCPA violations.


Beyond this expansive reading of the statute potentially opening up any individual with a smart-phone to TCPA violations, this interpretation would effectively destroy many business’ means to contact their customers. CBA’s members frequently use lists of stored telephone numbers, provided to them by consenting customers, to contact those customers with important and wanted communications. We feel this use should not be found in violation of the TCPA, and find that the Ninth Circuit’s recent reading goes beyond the statutory definition of an ATDS by separating the ability to store telephone numbers from the key element, “using a random or sequential number generator”. In fact, many dialers store the numbers to be dialed prior to actually dialing, essentially creating a list of stored numbers during the dialing process, and opening many dialer’s use up to potential TCPA violations under the Ninth Circuit’s reading.

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